UC-NRLF 


$B    22    32T 


THE 


American  Supreme  Court 


AS   AN 


International   Tribunal 


BY 


HERBERT  A.  SMITH,  M.A. 

Of  the  Inner  Temple,  Barrister-at-Law ;  Professor  of  Jurisprudence 

and  Common  Law,  McGill  University,  Montreal ;  formerly 

Fellow  of  Magdalen  C  11.  gf,  Oxford 


OXFORD   UNIVERSITY    PRESS 
1920 


THE 

American  Supreme  Court 

AS  AN 

International  Tribunal 


BY 

HERBERT  A./SMITH,  M.A. 

Of  the  Inner  Temple,  Barrister-at-taw;  Professor  of  Jurisprudence 

and  Common  Law,  McGill  University,  Montreal;  formerly 

Fellow  of  Magdalen  College,  Oxford 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :    35  WEST  32ND  STREET 
LONDON.  TORONTO,  MELBOURNE.  AND  BOMBAY 


a     • 


Copyright  1920 

BY    THE 

OXFORD  UNIVERSITY  PRESS 
American  Branch 


PRINTED   IN   U.    S.   A. 


PREFACE 

Whatever  form  the  League  of  Nations  may  ulti- 
mately take  it  must  contain  some  provisions  for  the-  set- 
tlement by  judicial  means  of  justiciable  disputes  between 
members  of  the  League.  For  about  a  century  and  a 
quarter  the  Supreme  Court  of  the  United  States  has 
been  entrusted  under  the  Federal  Constitution  with  the 
decision  of  such  controversies  between  the  States  of  the 
American  Union.  Since  it  has  worked  under  peculiar 
conditions  and  within  a  very  restricted  area  the  student 
will  see  that  inferences  drawn  from  its  history  can  only 
be  applied  with  considerable  qualification  to  any  Court 
of  the  Nations  that  may  hereafter  be  set  up.  Neverthe- 
less this  is  the  only  permanent  court,  as  distinguished 
from  occasional  arbitration  commissions,  which  has» 
hitherto  attempted  in  any  degree  to  discharge  the  func- 
tions of  a  true  international  tribunal,  and  it  is  therefore 
clearly  desirable  that  the  nature  of  its  work  should  be  as 
widely  as  possible  studied  at  the  present  time. 

This  essay  aims  at  giving  in  a  small  compass  a  rea- 
soned summary  of  all  the  inter-State  cases  hitherto  de- 
cided in  the  Supreme  Court.  As  I  am  not  writing  pri- 
marily for  lawyers  or  other  technical  students  I  have 
so  far  as  possible  avoided  all  technicalities.  Questions 
of  procedure,  for  example,  are  almost  entirely  ignored, 
and  I  have  also  passed  lightly  over  many  matters  which, 
although  important  in  themselves,  are  of  interest  mainly 
to  students  of  American  constitutional  law.  The  Su- 
preme Court  has  been  keenly  conscious  of  its  functions 
as  an  international  tribunal,  and  it  is  this  aspect  of  its 
work  which  I  wish  to  emphasize.     I  have  no  desire  to 


548 !?9 


S 


iv  PREFACE 

write  propaganda  either  for  or  against  the  League  of 
Nations,  and  it  is- possible  that  different  minds  may  draw- 
different  conclusions  from  a  study  of  the  history  of  the 
Supreme  Court.  To  my  mind  the  experiment  appears 
within  its  own  limits  as  a  great  success,  but  I  have  no 
wish  to  slur  over  the  difficulties  which  the  Court  has 
encountered  or  to  minimize  the  differences  between  the 
conditions  of  a  North  American  Union  and  those  of  a 
League  embracing  most  of  the  civilized  nations  of  the 
world. 

In  a  work  of  this  kind  it  would  be  merely  pedantic 
to  cite  numerous  authorities.  For  the  convenience  of 
lawyers  I  have  given  references  to  the  decisions  in  the 
original  Supreme  Court  reports,  which  are  to  be  found 
in  most  of  the  principal  law  libraries.  Dr.  James  Brown 
Scott  has  collected  all  the  inter-State  cases  into  two 
volumes  published  in  New  York  by  the  Oxford  Univer- 
sity Press  under  the  title  of  Judicial  Settlement  of  Con- 
troversies between  States  of  the  American  Union,  and 
in  a  third  volume  has  made  a  valuable  analysis  of  these 
cases  in  chronological  order.  This  exhaustive  work  has 
been  the  principal  source-book  for  my  essay,  as  it  must 
be  for  any  other  student  who  wishes  to  study  the  history 
of  the  Supreme  Court  as  an  international  tribunal. 

To  Dr.  Scott  personally  I  am  indebted  for  valuable 
advice  and  encouragement  in  the  preparation  of  this 
little  book,  the  substance  of  which  was  delivered  in  the 
form  of  lectures  at  Oxford  in  the  summer  term  of  1919. 
A  word  of  the  warmest  gratitude  is  also  due  to  many 
generous  hosts  in  Washington,  New  York,  and  the 
Southern  States,  whose  kindness  to  a  wandering  British 
officer  in  19 18  did  more  than  any  books  could  have  done 
to  quicken  my  interest  in  American  institutions. 

H.  A.  S. 


CONTENTS 


Preface  

Table  of  Cases     . 
I.     Origin  of  the  Supreme  Court 
II.     Extent  of  the  Jurisdiction 

III.  Boundary  Cases   . 

IV.  The  Recovery  of  State  Debts 
V.     Cases  of  Injury  by  State  Action 

VI.     The  Enforcement  of  Judgments 
VII.     General  Conclusions 

Index 


PAGE 

iii 
vii 
I 
14 
34 
60 

73 

89 

106 

121 


TABLE  OF  CASES 

PAGES 

Ableman  v.  Booth  (1858)  ;  21  Howard,  506....  97 

Alabama  v.  Georgia  (1859);  23  Howard,  505..  37-8,55 

Arkansas  v.  Tennessee  (1918)  ;  246  U.  S.,  158..  55-6 
Cherokee  Nation  v.  Georgia  (1831)  ;  5  Peters,  i        15,73-5,87,89 

Chisholm  v.  Georgia  (i793)  ;  2  Dallas,  419 9,60,94 

Collector  v.  Da^-  (1870)  ;  11  Wallace,  113 66 

Cuba  V.  North  Carolina  (1917)  ;  242  U.  S.,  665.  75 
bred  Scott  Case;  see  Scott  v.  Sandford. 

Florida  v.  Georgia  (1850)  ;  11  Howard,  293 18 

Florida  v.  Georgia  ( 1854)  ;  ij  Howard,  478 3, 18, 32, 37 

Hepburn  v.  Griswold  (1870)  ;  8  Wallace,  603. ..  11 

Indiana  v.  Kentucky  (1890)  ;  136  U.  S.,  479 40-I 

Indiana  v.  C/«T7^d  5faf^j  (1893)  ;  148  U.  b.,  148  64-5 

Iowa  V.  Illinois  ( 1893)  ;  147  U.  S.,  i 42-3 

Kansas  v.  Colorado   (1902);  185  U.  S.,  125 3,24-5,81,84 

Kansas  v.  Colorado  (1907)  ;  206  U.  S.,  46 33, 81-8, 97, 11 1 

Kansas  v.  United  States  (1907)  ;  204  U.  S.,  331  31 
Kentucky    v.     Dennison,     Governor    of    Ohio 

( i860)  ;  24  Howard,  66 18-19, 95-7 

Legal  Tender  Cas-es  (1871)  ;  12  Wallace,  457- •  •  n,  "3 
Louisiana  v.  Mississippi   (1906)  ;  202  U.   S.,   i 

and  50 26,  47-52 

Louisiana  v.  Texas  (1900)  ;  176  U.  S.,  i 22-4,  77-^,  87, 97 

McCulloch  V.  Maryland  (1819)  ;  4  Wheaton,  316  66,90 
Maryland  v.  West  Virginia  (1910)  ;  217  U.  S.,  i 

and  577 53-S 

Minnesota  v.  Hitchcock  (1902)  ;  185  U.  S.,  387..  31 

Missouri  v.  Illinois  (1901)  ;  180  U.  S.,  208 25-6,79 

Missouri  v.  Illinois  (1906)  ;  200  U.  S.,  496 79-81,88,97 

Missouri  v.  Illinois  (1906)  ;  202  U.  S.,  598 81 

Missouri  v.  loiva  (1849);  7  Howard,  660 17,36-7 

Missouri  v.  lozva  (1897)  ;  165  U.  S.,  118 36 

Missouri  v.  Kansas  (1908)  ;  213  U.  S.,  78.. 53 

Missouri  v.  Kentucky  (1870)  ;  11  Wall.,  395 39-40 

Missouri  v.  Nebraska  (1904)  ;  196  U.  S.,  23 47 

Nebraska  v.  Iowa  (1892)  ;  143  U.  S.,  359 41-2 

Nebraska  v.  Iowa  (1892);  145  U.  S.,  519 42 

New  Hampshire  v.  Louisiana  (1883)  ;  108  U.  S., 

76    21 

New  Jersey  v.  New  York  (1830)  ;  3  Peters,  461  14 

New  J-ersey  v.  Nezu  York  (1831)  ;  5  Peters,  284  15 

New  York  v.  Connecticut  (1799)  ;  4  Dallas,  i..  14 

New  York  v.  Louisiana  (1883);  108  U.  S.,  76..  21 
North     Carolina    v.     Tennessee     (1914)  ;     235 

U.  S.,  1 55 

"  Paquete  Habana,"  The  (1900)  ;  175  U.  S.,  677  84 
Pennsylvania  v.    Wheeling   &  Belmont  Bridge 

Co.  ( 1856)  ;  18  Howard,  421 yy 

vii 


viii  TABLE  OF  CASES 

PAGES 

Rhode  Island  v.  Massachusetts  (1833)  ;  7  Peters, 

651    16 

Rhode    Island    v.    Massachusetts     (1838);     12 

Peters,  657 17, 95 

Rhode  Island  v.  Massachusetts  (1846)  ;  4  How- 
ard,   591 35-6 

Scott  V.  Sandford    (1857);   19  Howard,  393. .  11,  91-3, 1 12-3,  117 

South  Carolina  v.  Georgia  (1876)  ;  93  U.  S.,  4..  75-7,88 
South   Carolina  v.    United  States    (1905);    199 

U.   S.,  437 65-7 

South  Dakota  v.  North  Carolina   (1904);   192 

.U.  S.,  286 21-2,63,98-9 

United  States  v.  Louisiana  (1887)  ;  123  U.  S.,  32  32,64 
United  States  v.  Louisiana   (1888);   127  U.  S., 

182    64 

United  States  v.  Michigan  (1903)  ;  190  U.  S.,  379  62  3,98 
United  States  v.  New  York  (1896)  ;  160  U.  S., 

598   65 

United  States  v.  North  Carolina   ( 1890)  ;    136 

U.  S.,  211 29,61-2 

United  States  v.  Texas  (1892)  ;  143  U.  S.,  621..  29-30 

United  States  v.  Texas  (1896)  ;  162  U.  S.,  i 44-7 

United  States  v.  Wong  Kim  Ark   (1898)  ;  169 

U.  S.,654 58 

Virginia  v.  Tennessee  (1893)  ;  148  U.  S.,  503.. .  43 

Virginia  v.  Tennessee  (1903)  ;  190  U.  S.,  64 44 

Virginia  v.  West  Virginia  (1870);  11  Wallace, 

^^.   39 19-21,  35,  38-^ 

Virginia  v.  West  Virginia  (1907)  ;  206  U.  S.,  290  27-8,67-72 

Virginia  v.  West  Virginia  (1908)  ;  209  U.  S.,  514  68 

Virginia  v.  West  Virginia  ( 191 1 )  ;  220  U.  S.,  i  68-9, 107 

Virginia  v.  West  Virginia  (1911)  ;  222  U.  S.,  17  69 

Virginia  v.  West  Virginia  (1913)  ;  231  U.  S.,  89  69 

Virginia  v.  West  Virginia  (1914)  ;  234  U.  S.,  117  69, 108 

Virginia  v.  West  Virginia  (1915)  ;  238  U.  S.,  202  70-72,99 

Virginia  v.  West  Virginia  (1916)  ;  241  U.  S.,  531  100 

Virginia  v.  West  Virginia  ( 1918)  ;  246  U.  S.,  565  100-4 

Washington  v.  Oregon  (1908)  ;  211  U.  S.,  127..  52-3 

Washington  v.  Oregon  (1909)  ;  214  U.  S.,  205..  53 

Worcester  v.  Georgia  (1832) ;  6  Peters,  515. .. .  74,89 


CHAPTER  I 

ORIGIN  OF  THE  SUPREME  COURT 

In  order  to  appreciate  the  part  which  the  Supreme  Court 
has  played  in  the  history  of  the  United  States  it  is  neces- 
sary to  understand  clearly  the  political  theory  upon  which 
the  whole  Constitution  rests.  This  theory,  shortly  stated, 
is  that  the  United  States  is  a  voluntary  union  of  sover- 
eign and  independent  States.  Thus  the  "  Articles  of  Con- 
federation and  Perpetual  Union,"  ratified  in  1781,  de- 
clared that  "  each  State  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and 
right  which  is  not  by  this  Confederation  expressly  dele- 
gated to  the  United  States  in  Congress  assembled."  So 
again  in  the  existing  Constitution  it  is  declared  by  the 
Tenth  Amendment,  which  was  ratified  in  1791,  that  "  the 
powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people."  In  other  words 
the  Federal  Government  in  all  its  organs  is  theoretically 
only  an  agent  enjoying  such  limited  powers  as  have  been 
deleg-ated  to  it  by  the  joint  authority  of  the  sovereign  and 
independent  States. 

Looked  at  historically  this  doctrine  rests  upon  a  con- 
siderable straining  of  the  facts.  The  several  States  have 
never  actually  been  independent  in  the  sense  in  which,  for 
example,  France  and  Spain  are  independent  powers.  Be- 
fore the  Revolution  they  were  united  by  their  common 
dependence  upon  the  British  Crown.  During  the  war, 
which  lasted  from  1775  to  1783,  they  were  no  less  united 
by  the  necessity  of  common  military  action.    While  the 

I 
P.  434S  A 


•'i  AMERICAN  SUPREME  COURT 

i  ?  Avkf  ^as  still  in  progress  they  effected  a  formal  union 
by  the  "  Articles  of  Confederation,"  the  ratifications  of 
which  were  completed  in  1781.  In  1789  this  union, 
which  had  proved  too  loose  to  be  workable  in  practice, 
was  superseded  by  the  "  Constitution  of  the  United 
States,"  under  which  the  country  has  been  governed  to 
this  day.  In  the  course  of  time  the  number  of  the  States 
has  increased  from  thirteen  to  forty-eight.  The  great 
majority  of  these  new  States  have  been  created  by  Fed- 
eral legislation  out  of  Federal  territory,  and  have  never 
enjoyed  even  a  transient  independence.  A  few  have  been 
acquired  by  cession  from  foreign  powers,  and  subse- 
quently erected  into  States.  Texas  alone  has  known  a 
fleeting  independence  in  the  brief  interval  between  her 
separation  from  Mexico  in  1836  and  her  incorporation 
into  the  United  States  in  1845. 

But  the  political  importance  of  the  doctrine  is  in  no 
way  affected  by  the  weakness  of  its  historical  foundation. 
It  was  deliberately  adopted  as  and  still  remains  the  gov- 
erning principle  of  the  whole  Union.  To  British  readers 
it  has  a  special  interest,  because  it  was  consciously  taken 
in  1900  as  the  foundation  for  the  Constitution  of  the 
Australian  Commonwealth,  the  framers  of  which  pre- 
ferred to  follow  the  Federal  principle  of  the  United 
States  rather  than  the  unitary  theory  which  governs  the 
Constitution  of  the  Dominion  of  Canada.^  For  our  pres- 
ent purpose  the  importance  of  the  doctrine  lies  in  the  fact 

I  that  it  has  compelled  the  Supreme  Court  in  deciding  con- 
troversies between  the  States  to  assume  the  role  of  an 
international  tribunal.  An  English  Court,  deciding  a 
case  between  two  county  councils,  will  treat  the  parties 
exactly  as  if  they  were  two  ordinary  corporations.  But 
the  American  Supreme  Court  is  compelled  to  adopt  a 

^  South  Africa,  on  the  other  hand,  has  adopted  the  unitary 
principle. 


ORIGIN  OF  THE  SUPREME  COURT  '-'    '3 

different  attitude  when  the  parties  before  its  bar^are' 
States  of  the  Union.    Speaking  of  the  application  of  the 
English  procedure  to  such  cases  Chief  Justice  Taney  said 
in  the  case  of  Florida  v.  Georgia  in  1854:  ^ 

"  These  precedents  could  not  govern  a  case  where 
a  sovereign  State  was  a  party  defendant.  Nor  could 
the  proceedings  of  the  English  Chancery  Court,  in  a 
controversy  about  boundaries,  between  proprietary 
governments  in  this  country,  where  the  territory  was 
subject  to  the  authority  of  the  English  Government, 
and  the  person  of  the  proprietary  subject  to  the 
authority  of  its  courts,  be  adopted  as  a  guide  where 
sovereign  States  were  litigating  a  question  of  boun- 
dary in  a  court  of  the  United  States.  They  fur- 
nished analogies,  but  nothing  more." 

So  again  Chief  Justice  Fuller,  delivering  judgment  in  the 
case  of  Kansas  v.  Colorado  in  1902,^  said : 

"  Sitting,  as  it  were,  as  an  international,  as  well  as 
a  domestic  tribunal,  we  apply  Federal  law,  State  law, 
and  international  law,  as  the  exigencies  of  the  par- 
ticular case  may  demand.*' 

Bearing  this  fundamental  principle  in  mind,  let  us  con- 
sider the  steps  which  led  up  to  the  establishment  of  the 
Supreme  Court.  

The  Declaration  of  Independence  was  published  at 
Philadelphia  on  the  4th  July,  1776.  In  the  next  year 
the  delegates  of  thirteen  States  assembled  in  the  same  city 
drew  up  the  "Articles  of  Confederation  and  Perpetual 
Union,"  which  were  an  attempt  to  form  a  Federal  union 
with  the  minimum  surrender  of  State  rights.  The  first 
article  of  this  document  gave  the  new  commonwealth  the 
name  which  it  has  ever  since  retained.  The  second  laid 
down  the  fundamental  principle  of  State  sovereignty  in 

1 17  Howard,  492.  2  185  u.  S.,  146. 


AMERICAN  SUPREME  COURT 


ttie  vi'orids  which  have  been  already  quoted.  In  the  third 
article  the  object  of  the  Confederation  is  described  in  the 
following  words : 

"  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  com- 
mon defence,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare,  binding  themselves  to 
assist  each  other  against  all  force  offered  to,  or 
attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretence 
whatever." 

This  is  not  the  place  to  describe  in  detail  the  adminis- 
trative and  legislative  arrangements  of  the  Confederation. 
Suffice  it  to  say  that  they  were  designed  to  give  only  a 
bare  minimum  of  power  to  the  central  government,  and 
to  reserve  as  much  as  possible  to  the  individual  States. 
A  small  Congress  was  established,  in  which  each  State 
was  to  have  one  vote.  Diplomacy  was  forbidden  to  the 
States,  but  their  right  was  recognised  to  make  war  in- 
dividually in  cases  of  emergency.  Military  forces  were 
to  be  raised  and  equipped  by  the  States,  though  placed 
under  the  control  of  Congress  for  the  actual  operations 
of  war.  States  were  allowed  to  regulate  their  own 
customs  duties,  so  long  as  these  did  not  violate  any 
treaty  obligations  undertaken  by  Congress.  In  short,  the 
Confederation  was,  as  Lord  Bryce  says,  "  rather  a  league 
than  a  national  government." 

The  provisions  for  the  settlement  of  inter-State  dis- 
putes are  contained  in  the  ninth  Article,  and  begin  as 
follows : 

"  The  United  States,  in  Congress  assembled,  shall 
also  be  the  last  resort  of  appeal,  in  all  disputes  and 
differences  now  subsisting,  or  that  hereafter  may 
arise  between  two  or  more  States  concerning  boun- 
dary, jurisdiction,  or  any  other  cause  whatever." 


ORIGIN  OF  THE  SUPREME  COURT         5 

The  .Axticle.  which  is  too  long  to  be  quoted  in  full,  goes 
on  to  provide  that,  when  any  dispute  comes  before  Con- 
gress, it  shall  be  referred  to  a  body  of  commissioners 
selected  in  a  certain  way  from  a  large  panel ;  "  and  the 
judgment  and  sentence  of  the  Court,  to  be  appointed  in 
the  manner  before  prescribed,  shall  be  final  and  con- 
clusive.'* 

Upon  this  it  will  be  observed  that  the  Confederation 
makes  no  provision  for  a  Federal  judiciary  or  for  any 
permanent  tribunal  superior  to  the  State  Courts.  Dis- 
putes between  States  are  to  be  referred  to  a  body  of  com- 
missioners appointed  separately  to  deal  with  each  case  as 
it  arises.  The  procedure  suggests  an  arbitration  rather 
than  a  lawsuit,  and  is  in  some  respects  a  foreshadowing 
of  the  rules  adopted  by  the  Hague  Conference  in  1907 
for  the  settlement  of  international  disputes.  Nothing  is  A  \ 
said  about  enforcing  obedience  to  the  decision. 

The  scheme  of  union  thus  devised  was  from  every 
point  of  view  a  complete  failure.  Its  weakness  became 
apparent  as  soon  as  the  bond  of  a  common  military  neces- 
sity was  dissolved  in  1783.  The  central  government  was 
far  too  feeble  to  control  the  conflicting  interests  of  the 
several  States,  and  became  an  object  of  general  contempt. 
Treaties  with  foreign  powers  were  not  observed,  while 
irresponsible  legislation  and  violent  disorders  soon  proved 
the  incompetence  of  the  States  for  separate  self-govern- 
ment. Washington  described  the  situation  as  no  better 
than  anarchy,  and  the  new  commonwealth  naturally 
failed  to  command  any  respect  in  the  eyes  of  other 
nations. 

It  was  evident  that  such  a  state  of  things  could  not 
last.  Either  disruption  or  closer  union  was  bound  to 
come,  and  in  1786  delegates  from  five  States  met  at 
Annapolis  in  Maryland  to  discuss  possible  reforms.  In 
the  next  year,  acting  on  their  recommendation,  a  full 


6  AMERICAN  SUPREME  COURT 

Convention,  from  which  Rhode  Island  was  the  only  ab- 
sentee, met  at  Philadelphia  and  gave  America  the  Consti- 
tution under  which  she  has  lived  ever  since. 

The  debates  in  the  Convention  ranged  over  a  wide 
field,  and  disclosed  the  division,  which  was  to  last  so 
long  in  American  politics,  between  the  advocates  of  a 
strong  central  government  and  the  champions  of  State 
rights.  But  a  spirit  of  reasonableness  was  in  the  air, 
men  of  all  parties  being  deeply  impressed  with  the  grave 
danger  of  the  existing  situation.  In  particular  they 
realised  that  the  Union,  as  it  stood  then,  would  be  almost 
helpless  against  external  aggression. 

For  the  present  we  are  concerned  only  with  the  ques- 
tion of  judicature.  The  first  proposals  for  a  national 
judiciary  were  contained  in  the  "  Virginian  Plan  "  pro- 
pounded on  the  29th  May,  1787,  by  Edmund  Randolph 
of  Virginia,  afterwards  Attorney-General  of  the  United 
States.  After  consideration  by  a  committee  a  draft 
scheme  was  reported  to  the  Convention,  in  which  it  was 
recommended  "  that  the  jurisdiction  of  the  national 
judiciary  shall  extend  to  all  cases  respecting  the  collection 
of  the  national  revenue,  impeachments  of  any  national 
officers,  and  questions  which  involve  the  national  peace 
and  harmony." 

In  August  a  draft  Constitution  was  drawn  up,  in  which 
an  endeavour  was  made  to  create  two  national  tribunals 
of  final  authority.  Disputes  between  the  States  involving 
questions  of  jurisdiction  or  territory  were  to  be  referred 
to  the  Senate,  together  with  private  controversies  con- 
cerning land  claimed  under  conflicting  grants  from  dif- 
ferent States.  All  other  cases  were  to  be  decided  by  the 
Supreme  Court  and  the  inferior  Federal  tribunals. 

This  unsatisfactory  dualism  did  not  survive  debate,  and 
ultimately  the  jurisdiction  of  the  Senate  was  taken  away, 
except  its  power  to  hear  impeachments.     On  the  17th 


ORIGIN  OF  THE  SUPREME  COURT         7 

September,  1787,  the  Constitution  in  its  present  form  was 
signed  by  thirty-nine  out  of  the  sixty-five  delegates  who 
had  been  appointed  to  the  Convention.  By  June  of  the 
next  year  it  had  received  ratifications  from  nine  States, 
which  was  the  minimum  number  required  under  its  own 
terms  (Art.  VII)  to  bring  it  into  force.  Rhode  Island, 
the  smallest  and  most  intractable  of  the  States,  held  out 
longest  and  ultimately  ratified  on  the  29th  May,  1790. 
The  Constitution  thereupon  became  binding  on  the  whole 
country,  and  each  of  the  younger  States  has  since  become 
a  consenting  party  to  the  Constitution  by  the  fact  of  its 
admission  to  the  Union. 

The  third  Article  creates  the  national  judiciary  in  the 
following  terms : 

''  Section  i.  The  judicial  power  of  the  United 
States  shall  be  vested  in  one  Supreme  Court,  and  in 
such  inferior  courts  as  the  Congress  may  from  time 
to  time  ordain  and  establish.  The  judges,  both  of 
the  Supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behaviour,  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation, 
which  shall  not  be  diminished  during  their  continu- 
ance in  office. 

"Section  2.  The  judicial  power  shall  extend  to 
all  cases,  in  law  and  equity,  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  authority ; 
to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls;  to  all  cases  of  admiralty  and 
maritime  jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  States ;  between  a  State  and  citi- 
zens of  another  State;  between  citizens  of  different 
States, — between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States, 
citizens,  or  subjects. 

"  In  all  cases  affecting  ambassadors,  other  public 


8  AMERICAN  SUPREME  COURT 

ministers,  and  consuls,  and  those  in  which  a  State 
shall  be  party,  the  Supreme  Court  shall  have  orig- 
inal jurisdiction.  In  all  the  other  cases  before  men- 
tioned, the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions, 
and  under  such  regulations  as  the  Congress  shall 
make." 

(The  remaining  provisions  deal  with  criminal 
cases.) 

In  pursuance  of  the  authority  thus  conferred  Congress 
proceeded  to  pass  the  Judiciary  Act  of  1789,  providing* 
for  the  establishment  of  a  complete  system  of  Federal 
courts  throughout  the  whole  country.  Of  this  Act  it 
is  necessary  to  cite  the  fourteenth  section : 

"  The  Supreme  Court  shall  have  exclusive  juris- 
diction of  all  controversies  of  a  civil  nature,  where 
a  State  is  a  party,  except  between  a  State  and  its 
citizens ;  and  except  also  between  a  State  and  citizens 
of  other  States,  or  aliens,  in  which  latter  cases  it 
shall  have  original  but  not  exclusive  jurisdiction." 

Again,  it  will  be  observed,  no  express  provision  is  made, 
either  in  the  Constitution  itself  or  in  the  Act  of  Congress, 
for  ensuring  the  compliance  of  States  with  the  decrees 
of  the  Court. 

In  the  debates  preceding  the  ratification  of  the  Consti- 
tution by  the  various  States  strong  opposition  to  the 
whole  idea  of  a  Federal  Supreme  Court  appeared  in  many 
quarters.  In  particular  objection  was  expressed  that  the 
provisions  of  the  Article  might  expose  a  sovereign  State 
to  the  indignity  of  being  summoned  to  the  bar  of  the 
Court  at  the  suit  of  a  private  litigant.  John  Marshall, 
afterwards  Chief  Justice  of  the  United  States,  and  other 
speakers  poured  ridicule  upon  this  argument,  saying  in 
effect  that  no  one  ever  contemplated  such  an  absurdity, 
and  it  is  certain  that  the  public  opinion  of  the  day  would 


ORIGIN  OF  THE  SUPREME  COURT         9 

never  have  consented  to  such  an  infraction  of   State 
rights/ 

Marshall,  however,  was  for  once  in  the  wrong.  In  1792 
a  suit  was  actually  filed  in  the  Supreme  Court  by  one 
Chisholm  of  South  Carolina  against  the  State  of  Georgia, 
the  claim  being  for  certain  moneys  due  to  an  estate  of 
which  the  plaintiff  was  executor.  Georgia  refused  to  ap- 
pear, but  the  case  came  on  for  argument  in  the  next  year, 
and  a  majority  of  the  Court  held  that  the  action  was 
maintainable.^  This  decision  created  w^idespread  indigna- 
tion throughout  the  Union,  for  it  was  clearly  contrary  to 
the  understanding  upon  which  the  great  majority  of 
Americans  had  consented  to  the  establishment  of  a 
Supreme  Court  and  a  Federal  judiciary.  In  Georgia 
feeling  ran  so  high  that  a  bill  was  actually  introduced 
into  the  Legislature  threatening  with  the  death  penalty 
any  one  who  should  attempt  to  enforce  the  judgment. 
Next  year  Congress  took  action  to  overrule  the  judg- 
ment by  the  Eleventh  Amendment  to  the  Constitution, 
which  became  effective  in  1798.  The  Amendment  runs 
as  follows: 

"  The  judicial  power  of  the  United  States  shall  not 
be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State." 

Various  attempts  were  made  to  circumvent  the  prohibi- 
tory effect  of  the  Amendment,  either  by  bringing  suit 
against  a  State  official  as  nominal  defendant  or  by  a  State 
lending  its  name  to  a  private  plaintiff  for  the  prosecution 
of  what  was  really  a  private  claim.  These  attempts,  how- 
ever, failed.    The  Court  in  each  case  looked  at  the  sub- 

1  See  p.  loi,  post.  2  2  Dallas,  419. 


lo  AMERICAN  SUPREME  COURT 

stance  of  the  action  rather  than  the  form,  and  invariably 
rejected  all  such  claims  as  were  in  substance  suits  by 
individuals  against  States.  The  details  of  these  attempts 
belong  rather  to  the  study  of  American  constitutional 
law  than  to  the  history  of  the  Court  in  its  international 
character. 

A  few  words  may  be  added  as  to  the  personnel  of  the 
Court.  The  original  establishment  provided  for  a  chief 
justice  and  five  associate  justices;  the  full  number  at  the 
present  day  is  nine.  The  judges  are  irremovable  except 
upon  impeachment,  their  tenure  thus  being  slightly  more 
secure  than  that  even  of  the  British  judges,  who  can  be 
removed  upon  an  address  from  both  Houses  of  Parlia- 
ment. Their  salaries  cannot  be  reduced  during  their 
term  of  office.  Up  to  the  present  there  has  been  only  one 
attempt  to  impeach  a  judge  of  the  Supreme  Court, 
Samuel  Chase  of  Maryland,  and  this  was  defeated  in 
1805,  though  two  convictions  have  been  obtained  against 
inferior  Federal  judges.^ 

Washington  was  keenly  sensible  of  his  high  responsi- 
bility in  making  his  original  appointments  to  the  Court, 
and  his  selection  was  amply  justified  by  events.  The 
first  Chief  Justice  was  John  Jay  of  New  York,  and  the 
associates  were  James  Wilson  of  Pennsylvania,  William 
Cushing  of  Massachusetts,  John  Blair  of  Virginia,  James 
Iredell  of  North  Carolina,  and  Thomas  Johnson  of  Mary- 
land. In  the  course  of  its  history  the  Court  has  included 
many  eminent  men,  but  space  only  permits  us  here  to 
notice  one,  John  Marshall  of  Virginia,  who  presided  over 
it  from  1 80 1  until  1835.  Marshall  has  by  common  con- 
sent now  won  a  permanent  place  among  the  great  lawyers 
of  the  world.     To  him,  more  than  to  any  other  man, 


iThe  attack  on  Chase  was  a  purely  political  attempt  to  punish 
the  Court  for  its  "  Federalist "  leanings.  Of  the  two  convictions 
one  was  for  personal  misconduct  and  one   for  rebellion. 


ORIGIN  OF  THE  SUPREME  COURT        ii 

America  owes  that  progressive  interpretation  of  the  Con- 
stitution which  has  enabled  it  to  keep  pace  with  the  needs 
of  a  community  that  has  grown  far  beyond  anything  that 
its  founders  could  have  imagined. 

No  other  tribunal  in  the  world's  history  has  hitherto 
been  entrusted  with  responsibilities  so  high  as  those  of  the 
Supreme  Court,  and  men  who  to-day  are  contemplating 
the  settlement  of  all  international  disputes  by  judicial 
means  may  well  ask  how  far  the  actual  history  of  the 
Court  has  justified  the  confidence  reposed  in  it  by  its 
authors/ 

It  is  not  altogether  easy  to  give  an  unqualified  answer. 
At  the  outset  much  suspicion  and  hostility  had  to  be  over- 
come, and  the  successful  resistance  of  Georgia  to  the 
Chisholm  judgment  affords  a  fair  measure  of  popular 
feeling  in  Revolutionary  times.  Again  in  1857  a  great 
outbreak  of  resentment  was  provoked  by  the  decision  in 
the  Dred  Scott  case,^  when  a  majority  of  the  Court  held 
that  a  slave  returning  from  a  free  Territory  to  a  slave 
State  was  still  a  slave  and  as  such  without  civil  rights. 
This  doctrine  was  formally  condemned  by  the  Republican 
Convention  which  nominated  Lincoln  in  i860,  and  must 
undoubtedly  be  reckoned  among  the  causes  which  con- 
tributed to  the  Civil  War.  In  two  other  notable  political 
cases  where  strong  party  feeling  was  aroused  the  judges 
of  the  Court  were  divided  in  opinion  along  strictly  party 
lines.  In  one  of  these,  the  "  Legal  Tender  Case  "  *  of 
1 87 1,  the  Court  actually  reversed  by  a  majority  of  five  to 
four  its  own  decision  of  the  previous  year,*  which  had 
been  rendered  by  a  majority  of  five  to  three.  The  death 
of  one  judge  and  two  new  appointments  to  the  bench  had 
sufficed  to  turn  the  balance.     In  the  other  instance,  that 

1  This  topic  is  treated  more  at  length  in  Chapter  VII. 

2  Scott  V.  Sandford,  19  Howard,  393.    See  p.  91,  Post. 

3  12  Wallace,  457. 

*  Hepburn  v.  Griswold,  8  Wallace,  603. 


12  AMERICAN  SUPREME  COURT 

of  a  disputed  presidential  election  in  1877,  five  judges  of 
the  Court  were  included  in  the  commission  of  inquiry, 
and  they  voted  on  purely  party  lines  just  as  did  the  non- 
judicial members. 

On  the  other  hand,  it  will  be  found  that  no  such  doubt- 
ful motives  appear  to  have  affected  the  decisions  of  the 
Court  in  any  of  the  inter-State  cases  which  we  shall 
examine  in  the  following  chapters.  In  direct  suits  be- 
tween two  States  the  Court  has  always  shown  a  high 
standard  of  impartiality,  and  judges  have  more  than  once 
voted  against  the  contentions  of  the  States  to  which  they 
themselves  belonged.  The  confidence  of  the  States  in  the 
Court  has  deepened  with  the  advance  of  time,  and  they 
have  shown  an  increasing  willingness  to  submit  their  dis- 
putes to  its  decision. 

Before  parting  from  this  question  it  is  necessary  to 
bear  in  mind  that  the  Court  did  not  prevent,  and  was 
given  no  opportunity  of  preventing,  the  Civil  War.  The 
immediate  dispute  in  the  Civil  War  turned,  not  upon  the 
ethics  of  slavery,  but  upon  the  right  claimed  for  the 
Southern  States  to  withdraw  from  the  Union.  That 
question  had  been  left  open  by  the  Constitution,  and  if 
it  ever  had  come  before  the  Supreme  Court  we  may  be 
certain  that  neither  party  would  have  tamely  submitted 
to  an  adverse  decision.  The  issue  was  clearly  defined  on 
the  20th  December,  i860,  when  the  South  Carolina  Con- 
vention repealed  the  ordinance  ratifying  the  Constitution, 
and  declared  that  South  Carolina  resumed  her  sovereign 
place  among  the  nations.  Other  Southern  States  quickly 
followed  suit,  and  it  is  obvious  that,  if  they  were  right  in 
their  contention,  the  jurisdiction  of  the  Supreme  Court 
over  the  controversy  was  annulled  by  the  mere  fact  of 
secession.  As  a  matter  of  fact  the  South  was  fully  de- 
termined to  fight,  if  necessary,  in  support  of  its  claim, 
and  Northern  opinion,  after  a  certain  amount  of  hesi- 


ORIGIN  OF  THE  SUPREME  COURT        13 

tancy,  arrived  at  an  equally  strong  determination  to  fight 
for  the  Union.  Ultimately  the  matter  was  settled  by  war, 
and  the  victory  of  the  North  was  recorded  in  three 
Amendments  ^  to  the  Constitution. 

The  moral  of  this  surely  is  that  no  laws  and  no  law 
courts  upon  earth  can  in  the  last  resort  restrain  States 
or  nations  who  are  fully  determined  to  fight  rather  than 
to  forego  what  they  consider  to  be  their  just  claims.  The 
ultimate  cure  for  war  lies,  not  in  any  particular  judicial 
machinery,  but  in  the  growth  among  all  nations  of  a 
willingness  to  settle  controversies  by  judicial  rather  than 
by  warlike  methods. 

This  is  not  a  merely  cynical  conclusion,  nor  does  it 
justify  us  in  saying  that  there  is  no  sphere  of  usefulness 
for  an  international  court.  Any  war  is  a  terrible  thing, 
and  a  court  which  cannot  prevent  all  wars  will  have 
justified  its  existence  if  it  even  succeeds  in  preventing 
one. 

In  the  following  chapters  we  shall  try  to  discover  how 
far  American  experience  justifies  us  in  putting  our  hopes 
in  a  permanent  international  court  as  a  means  of  preserv- 
ing peace  among  the  nations  of  the  world. 

113th,  1865;  14th,  1868;  15th,  1870.  The  last,  which  purports 
to  give  the  negroes  equal  suffrage  with  whites,  has  been  nullified 
in  practice  by  the   ingenuity   of   Southern   statesmen. 


CHAPTER  II 
EXTENT  OF  THE  JURISDICTION 

The  third  Article  of  the  Constitution  was  drafted  in 
somewhat  general  terms,  and  many  points  were  left  to  be 
settled  by  the  Court  itself  as  they  should  arise.  This  was 
probably  inevitable.  Any  attempt  to  work  out  every  con- 
ceivable problem  in  1787  would  undoubtedly  have  pre- 
vented any  agreement  upon  the  main  question  of  the 
acceptance  of  the  Constitution.  The  first  necessity  was 
to  induce  the  suspicious  States  to  accept  any  Court  at  all. 
That  being  done  it  would  remain  with  the  Court  itself  to 
justify  its  existence  in  the  eyes  of  the  American  people 
by  the  wisdom  and  fairness  of  its  decisions. 

Under  the  Confederation  only  one  inter-State  dispute 
was  decided  by  the  commission  procedure  already  de- 
scribed. Eleven  boundary  cases,  mostly  of  long  stand- 
ing, remained  unsettled  when  the  Confederation  was  suc- 
ceeded by  the  "  more  perfect  union "  of  the  present 
Constitution. 

The  States,  however,  showed  no  undue  eagerness  to 
appeal  to  the  new  tribunal,  and  it  was  not  until  1846  that 
the  first  final  decree  was  entered  in  a  suit  between  two 
States.  The  earliest  cases  deal  only  with  small  points  of 
procedure,  and  are  therefore  of  scarcely  more  than  tech- 
nical interest.  In  1799  New  York  filed  a  suit  against 
Connecticut^  arising  out  of  a  boundary  dispute,  and  in 
1830  an  action  was  begun  by  New  Jersey  against  New 
York.^     Neither  suit  was  prosecuted  beyond  the  initial 

14  Dallas,  I.  23  Peters,  461. 


EXTENT  OF  THE  JURISDICTION         15 

stages.  As  the  Constitution  had  said  nothing  about  pro- 
cedure, the  Court  was  left  to  find  its  own  way,  and  this 
being  so  it  was  natural  that  judges  who  had  been  brought 
up  on  the  English  common  law  should  model  their  pro- 
cedure as  far  as  possible  upon  the  existing  practice  of 
the  English  courts.    Accordingly  it  was  laid  down 

"  that  this  court  consider  the  practice  of  the  court 
of  king's  bench  and  of  chancery,  in  England,  as 
affording  outlines  for  the  practice  of  this  court;  and 
that  they  will,  from  time  to  time,  make  such  altera- 
tions therein,  as  circumstances  may  render  neces- 
sary." ^ 

It  is  only  necessary  to  add  that  the  Court,  in  handling 
these  questions  of  procedure,  felt  its  way  forward  with 
the  utmost  caution,  and  with  a  keen  sense  of  the  dignity 
of  the  parties  before  its  bar. 

In  passing  we  may  notice  a  case  decided  in  1831,  in 
which  the  Cherokee  Indians  sought  the  aid  of  the 
Supreme  Court  to  put  an  end  to  the  continued  perse- 
cution to  which  they  were  subjected  by  the  State  of 
Georgia.^  Persistent  ill-treatment  of  the  Indian  tribes 
forms  an  unpleasing  feature  of  early  American  history, 
and  upon  the  merits  of  the  case  it  is  evident  that  there 
was  only  too  good  foundation  for  the  Cherokee  claim. 
But  the  question  of  jurisdiction  turned  upon  whether  the 
Indian  tribes  were  entitled  to  be  regarded  as  "  foreign 
States  **  within  the  meaning  of  the  phrase  in  Article  III 
of  the  Constitution.  This  question  a  majority  of  the 
Court  answered  in  the  negative,  though  Marshall  took  the 
opportunity  of  expressing  in  strong  language  the  indigna- 
tion felt  by  the  whole  Court  at  the  treatment  to  which 
the  unfortunate  Cherokees  had  been  subjected. 

The  great  question  of  jurisdiction  to  entertain  a  suit 

*  5  Peters,  284-5-  ^  5  Peters,  i.    See  pp.  72-5,  post. 


i6  AMERICAN  SUPREME  COURT 

between  two  States  was  first  fully  argued  and  decided  in 
the  case  of  Rhode  Island  v.  Massachtisetts,  which  began 
in  1833,^  but  did  not  reach  a  final  judgment  until  1846.'^ 
The  suit  was  brought  to  determine  a  boundary  dispute 
of  nearly  two  hundred  years  standing,  and  to  the  ordi- 
nary reader  it  would  appear  that  this  was  precisely  the 
kind  of  controversy  which  was  intended  by  the  Consti- 
tution to  be  decided  in  the  Supreme  Court.  But  the  doc- 
trine of  State  sovereignty  was  tenaciously  held  for  long 
after  the  Revolution,  and  Massachusetts  contended  stren- 
uously and  ingeniously  for  the  view  that  the  question  did 
not  fall  within  the  jurisdiction  of  the  Court.  Counsel 
maintained  that  the  dispute  was  wholly  political  in  its 
nature,  and  that  the  Court  could  not  determine  political 
controversies;  that  no  law  existed  to  govern  the  case; 
that  there  was  no  procedure  applicable  to  it;  and  that 
there  was  no  means  of  enforcing  the  decision  of  the 
Court. 

These  arguments  found  favour  in  the  eyes  of  Chief 
Justice  Taney,  who  was  an  ardent  believer  in  the  doctrine 
of  State  rights,  but  were  decisively  overruled  by  the 
majority  of  the  Court.  The  jurisdiction,  as  Mr.  Justice 
Baldwin  pointed  out,  was  derived  from  the  consent  of  the 
several  States  when  they  accepted  the  Constitution;  and 
as  a  matter  of  history  it  was  easy  to  show  that  boundary 
disputes  were  the  commonest  causes  of  controversy  and 
those  which  it  was  especially  desired  to  submit  to  judicial 
decision.  Since  diplomatic  intercourse  was  forbidden  to 
the  States  by  the  first  Article  (Sec.  10)  of  the  Constitu- 
tion it  was  clear  that  such  controversies  could  not  be 
peaceably  terminated  except  by  judicial  means.  So  far 
as  matters  of  law  were  concerned,  the  question  could  be 
treated  just  as  if  it  were  a  boundary  case  between  two 
private  landowners.  Questions  political  in  their  origin 
17  Peters,  651.  ^4  Howard,  591. 


EXTENT  OF  THE  JURISDICTION  17 

could  become  judicial  by  submission  to  a  proper  tribunal. 
Procedure  could  be  regulated  by  following  the  English 
practice,  subject  to  any  necessary  modifications.  One 
passage  from  the  judgment  may  well  be  quoted : 

"  We  are  thus  pointed  to  the  true  boundary  line 
between  political  and  judicial  power,  and  questions. 
A  sovereign  decides  by  his  own  will,  which  is  the 
supreme  law  within  his  own  boundary;  a  court  or 
judge  decides  according  to  the  law  prescribed  by 
the  sovereign  power,  and  that  law  is  the  rule  for 
judgment.  The  submission  by  the  sovereigns  or 
states  to  a  court  of  law  or  equity  of  a  controversy 
between  them,  without  prescribing  any  rule  of  de- 
cision, gives  power  to  decide  according  to  the  appro- 
priate law  of  the  case,  which  depends  on  the  subject 
matter,  the  source  and  nature  of  the  claims  of  the 
parties,  and  the  law  which  governs  them.  From  the 
time  of  such  submission  the  question  ceases  to  be  a 
political  one  to  be  determined  by  the  sic  volo,  sic 
juheo  of  political  power;  it  comes  to  the  court  to 
be  decided  by  its  judgment,  legal  discretion,  and 
solemn  consideration  of  the  rules  of  law  appropriate 
to  its  nature  as  a  judicial  question,  depending  on  the 
exercise  of  judicial  power;  as  it  is  bound  to  act  by 
known  and  settled  principles  of  national  or  munici- 
pal jurisprudence,  as  the  case  requires."  ^ 

The  question  of  jurisdiction  was  determined  in  1838, 
but  the  case  dragged  on  for  many  years,  Massachusetts 
raising  every  kind  of  technical  delay  in  order  to  evade 
or  postpone  a  decision  on  the  merits.  Ultimately  the 
cause  came  on  for  final  hearing  in  1846,  and  the  judg- 
ment of  the  Court  was  delivered  in  favour  of  Massa- 
chusetts, mainly  on  the  ground  of  long  possession  of 
the  disputed  territory. 

In  the  next  case,  that  of  Missouri  v.  lowa^  in  1849, 
no  question  of  jurisdiction  arose,  as  the  bill  was  filed  by 

112  Peters,  7Z7'  ^7  Howard,  660. 

P.  4345  B 


i8  AMERICAN  SUPREME  COURT 

consent  of  both  parties  in  order  to  settle  a  question  of 
boundary.  In  1850  another  boundary  suit  was  filed  by 
Florida  against  Georgia/  in  which  again  no  objection  was 
raised  to  the  jurisdiction.  The  case  however  merits  at- 
tention because  of  the  successful  claim  made  by  the 
United  States  to  intervene  in  the  action,  when  the  case 
came  on  for  argument  in  1854.^  This  claim  was  based 
partly  on  the  ground  that  the  validity  of  Federal  grants 
was  involved  and  partly  on  the  interest  which  the  Federal 
government  had,  on  behalf  of  itself  and  all  the  other 
States,  in  seeing  that  any  question  of  State  boundaries 
was  correctly  decided.  Technically  such  a  claim  was  open 
to  objection,  because  the  United  States  desired  to  inter- 
vene and  produce  evidence  without  assuming  the  liabili- 
ties of  a  party  to  the  action.  The  Federal  contention  was 
opposed  by  both  the  parties  to  the  suit,  but  a  majority  of 
the  Court  decided  to  disregard  technical  objections  and 
to  admit  the  intervention.  The  case  is  interesting  because 
it  illustrates  what  has  always  been  the  consistent  policy 
of  the  Court  in  handling  inter-State  controversies — 
namely,  a  refusal  to  allow  the  technical  rules  of  procedure 
which  obtain  in  private  cases  to  interfere  with  a  full  con- 
sideration of  every  case  upon  its  substantial  merits. 

The  jurisdiction  was  again  asserted  after  argument 
in  i860  ^  in  a  case  where  Kentucky  sought  to  compel  the 
Governor  of  Ohio  by  mandamus  to  deliver  up  for  trial 
a  free  negro  who  was  accused  of  violating  the  Kentucky 
law  by  assisting  the  escape  of  a  slave.  Feeling  on  the 
slavery  question  ran  high  in  i860,  and  it  was  abundantly 
clear  that  nothing  short  of  superior  force  would  induce 
the  authorities  of  Ohio  to  deliver  up  the  fugitive.  The 
Court  affirmed  its  jurisdiction  to  hear  the  case,  and  held 
that  the  action  against  the  Governor  was  in  substance  an 

III  Howard,  293. 
2  17  Howard,  478. 
^Kentucky  v.  Dennison,  Governor  of  Ohio;  24  Howard,  66. 


EXTENT  OF  THE  JURISDICTION  19 

action  against  the  State.  Procedure,  it  was  again  laid 
down,  was  a  matter  entirely  within  the  discretion  of 
the  Court,  and  the  procedure  by  mandamus  was  the  most 
appropriate  in  the  particular  case.  They  went  on  to  say 
that  the  text  of  the  Constitution  imposed  upon  the  Gov- 
ernor an  absolute  obligation  to  deliver  up  all  fugitives 
from  justice,  irrespective  of  the  offence  with  which  they 
were  charged,  and  he  was  not  entitled  to  exercise  any 
discretion  in  the  matter.  But  although  this  was  so,  the 
Court  held  that  there  was  no  means  provided  by  the  law 
for  enforcing  the  obligation. 

"  The  performance  of  this  duty,  however,  is  left 
to  depend  on  the  fidelity  of  the  State  Executive  to 
the  compact  entered  into  with  the  other  States  when 
it  adopted  the  Constitution  of  the  United  States,  and 
became  a  member  of  the  Union.  ...  If  the  Gov- 
ernor of  Ohio  refuses  to  discharge  this  duty,  there 
is  no  power  delegated  to  the  General  Government, 
either  through  the  Judicial  Department  or  through 
any  other  Department,  to  use  any  coercive  means  to 
compel  him.  And  upon  this  ground  the  motion  for 
the  mandamus  must  be  overruled."  ^ 

The  next  case  raising  the  question  of  jurisdiction  came 
after  the  Civil  War  and  arose  out  of  it.  During  the  war, 
in  the  year  1861,  the  people  of  the  mountain  counties  in 
the  northwest  of  Virginia  broke  off  from  the  main  body 
of  that  State  and  erected  themselves  into  a  new  State 
under  the  title  of  West  Virginia.  The  draft  constitu- 
tion provided  that  two  counties,  the  sympathies  of  which 
were  doubtful,  might  have  the  option  of  joining  the  new 
State  by  plebiscite.  Legal  assent  to  this  arrangement  was 
given  in  May,  1862,  by  a  body  which  Congress  recog- 
nised as  the  lawful  legislature  of  Virginia,  though  in  fact 
it  only  represented  the  minority  of  Virginians  w^hose 

124  Howard,   109-10.     See  Chapter  VI,  post. 


20  AMERICAN  SUPREME  COURT 

sympathies  were  with  the  North.  The  consent  of  Con- 
gress having  been  duly  obtained,  a  new  State  of  the 
Union  came  into  existence  on  the  20th  April,  1863. 
Shortly  afterwards  the  two  doubtful  counties  voted  for 
inclusion  in  West  Virginia,  and  were  duly  handed  over 
with  the  cordial  consent  of  the  minority  legislature  of  the 
parent  State.  In  1866  Congress  passed  an  act  recog- 
nising the  transfer. 

In  the  eastern  theatre  of  war  fighting  ended  with 
Lee's  surrender  to  Grant  at  Appomattox  in  April,  1865. 
In  December  of  the  same  year  the  legislature  of  Vir- 
ginia, which  now  again  really  represented  the  people, 
passed  an  act  repealing  the  acts  under  which  the  two 
counties  had  been  transferred.  This  was  followed  up  by 
a  suit  in  the  Supreme  Court  against  West  Virginia,^ 
which  came  on  for  argument  in  1870. 

West  Virginia  demurred  to  the  jurisdiction  on  the 
same  ground  as  that  taken  by  Massachusetts  in  1838, 
namely,  that  the  question  was  in  its  nature  not  judicial, 
but  purely  political.  In  view  of  the  earlier  cases  there 
could  be  but  one  answer  to  this  contention. 

"  We  consider,  therefore,"  said  Mr.  Justice  Miller 
for  the  majority  of  the  Court,  "  the  established  doc- 
trine of  this  Court  to  be,  that  it  has  jurisdiction  of 
questions  of  boundary  between  two  States  of  this 
Union,  and  that  this  jurisdiction  is  not  defeated, 
because  in  deciding  that  question  it  becomes  neces- 
sary to  examine  into  and  construe  compacts  or  agree- 
ments between  those  States,  or  because  the  decree 
which  the  Court  may  render  affects  the  territorial 
limits  of  the  political  jurisdiction  and  sovereignty 
of  the  States  which  are  parties  to  the  proceeding."  ^ 

Upon  the  merits  of  the  case  the  Court  held  that  Virginia 

was  bound  by  the  acts  of  her  minority  legislature,  to 

1 II  Wallace,  39-  ^  n  Wallace,  55- 


EXTENT  OF  THE  JURISDICTION  21 

which  Congress  had  assented.  The  two  counties  were 
therefore  adjudged  to  West  Virginia. 

The  jurisdiction  of  the  Court  was  now  well  estab- 
lished, and  no  new  question  arose  for  many  years.  The 
case  of  New  Hampshire  v.  Louisiana^  in  1883  needs  no 
more  than  a  passing  notice,  because  it  was  not  so  much 
a  controversy  between  States  as  an  attempt  on  the  part 
of  individuals,  with  the  connivance  of  a  State,  to  evade 
the  Eleventh  Amendment.  The  case  arose  out  of  the 
inability  or  unwillingness  of  Louisiana  to  meet  her  liabili- 
ties on  certain  bonds,  which  were  held  by  citizens  of 
New  Hampshire  and  New  York.  Being  unable  to  sue  in 
their  own  names  the  holders  made  an  arrangement,  con- 
firmed by  statute,  with  their  respective  State  authorities, 
by  which  the  bonds  were  to  be  nominally  assigned  to  the 
State,  and  the  State  was  to  bring  suit  for  the  sums  due. 
The  whole  benefit,  risks,  and  costs  of  the  proceedings 
were  to  be  borne  by  the  bondholders  in  spite  of  the  as- 
signment. Upon  these  facts  the  Court  had  no  difficulty 
in  finding  that  the  assignment  was  merely  colourable,  that 
the  real  title  remained  in  the  bondholders,  and  that  the 
suits  were  in  substance  brought  in  defiance  of  the 
Amendment. 

This  case  may  be  compared  with  a  somewhat  similar 
one  of  South  Dakota  v.  North  Carolina,^  decided  in  1904. 
In  this  case  the  bondholders  made  a  free  gift  of  their 
bonds  to  South  Dakota,  and  reserved  to  themselves  no 
kind  of  right  or  interest  in  any  proceedings  that  might 
subsequently  be  taken.  The  gifts  were  of  course  made 
with  the  object  of  enabling  the  State  to  sue  upon  the 
bonds,  and  the  donors  expressed  a  wish  that  the  proceeds 
might  be  devoted  to  State  charities.  North  Carolina 
strenuously  argued  that  this  case  came  within  the  prin- 

1 108  U.  S.,  76. 

2  192  U.  S.,  286.    See  pp.  63,  98,  post. 


22  AMERICAN  SUPREME  COURT 

ciple  of  the  earlier  decision,  and  so  fell  within  the  pro- 
hibition of  the  Eleventh  Amendment.  The  majority  of 
the  Court,  however,  held  that  neither  the  motive  prompt- 
ing the  action  nor  the  status  of  the  donor  affected  the 
validity  of  the  gift,  so  long  as  title  genuinely  passed.  A 
"  controversy  between  States  "  having  arisen,  the  juris- 
diction of  the  Supreme  Court  to  decide  it  was  affirmed, 
and  a  decree  of  foreclosure  was  accordingly  made  against 
North  Carolina. 

The  jurisdiction  of  the  Court  to  determine  boundary 
disputes  having  been  firmly  established,  we  may  pass 
over  a  series  of  boundary  cases  in  which  no  objection  to 
the  jurisdiction  was  raised  by  either  party.  A  new  prob- 
lem was,  however,  presented  by  the  case  of  Louisiana  v. 
Texas ^  which  came  before  the  Court  in  1900.  The  com- 
plaint in  this  case  was  that  the  quarantine  laws  of  Texas, 
instead  of  being  honestly  aimed  at  the  protection  of  the 
public  health,  were  in  reality  aimed  at  diverting  profitable 
trade  from  the  port  of  New  Orleans  in  Louisiana  to  the 
port  of  Galveston  in  Texas.  A  complete  embargo  had 
been  placed  upon  all  traffic  entering  Texas  from  New 
Orleans,  although  the  medical  reasons  were  quite  insuf- 
ficient to  justify  such  stringent  action.  This,  it  was 
claimed  by  Louisiana,  was  an  attempt  by  Texas  to  regu- 
late inter-State  commerce,  a  right  reserved  under  the 
Constitution  to  the  United  States. 

The  Court,  however,  refused  to  entertain  the  suit.  The 
main  reason  given  for  this  decision  was  that  the  contro- 
versy was  not  one  "  between  States,"  but  was  really  an 
attempt  to  sue  Texas  for  an  injury  suffered  by  certain 
commercial  firms  of  New  Orleans.  The  Court  declined 
to  accept  the  view  that  Louisiana  was  entitled  to  sue  as 
*'  parens  patriae,  trustee,  guardian,  or  representative  of 
all  her  citizens."    The  technical  ground  was  also  taken 

1 176  U.  S.,  I. 


EXTENT  OF  THE  JURISDICTION  23 

that  Texas  had  not  so  far  adopted  or  authorised  the 
action  of  her  health  officer  as  to  make  it  her  own  State 
action. 

A  proverb  tells  us  that  it  is  the  duty  of  a  good  judge 
to  enlarge  his  jurisdiction,  and  the  decision  of  the 
Supreme  Court  in  this  case  does  not  seem  easy  to  recon- 
cile with  the  principles  which  had  hitherto  guided  its 
rulings.  The  opinion  was  not  that  of  an  unanimous 
Court.  Two  judges  who  concurred  in  the  result  did  so 
for  different  reasons,  while  Mr.  Justice  Brown,  though 
concurring  on  technical  grounds,  maintained  strongly 
the  right  and  duty  of  a  State  to  protect  its  individual 
citizens  against  foreign  oppression. 

"  In  view,''  he  said,  "  of  the  solicitude  which  from 
time  immemorial  States  have  manifested  for  the 
interest  of  their  own  citizens;  of  the  fact  that  wars 
are  frequently  waged  by  States  in  vindication  of 
individual  rights,  of  which  the  last  war  with  Eng- 
land, the  opium  war  of  1840  between  Great  Britain 
and  China,  and  the  war  which  is  now  being  carried 
on  in  South  Africa  between  Great  Britain  and  the 
Transvaal  Republic,  are  all  notable  examples ;  of  the 
further  fact  that  treaties  are  entered  into  for  the 
protection  of  individual  rights,  that  international 
tribunals  are  constantly  being  established  for  the 
settlement  of  rights  of  private  parties,  it  would  seem 
a  strange  anomaly  if  a  State  of  this  Union,  which  is 
prohibited  by  the  Constitution  from  levying  war 
upon  another  State,  could  not  invoke  the  authority 
of  this  Court  by  suit  to  raise  an  embargo  which  had 
been  established  by  another  State  against  its  citizens 
and  their  property.  An  embargo,  though  not  an  act 
of  war,  is  frequently  resorted  to  as  preliminary  to  a 
declaration  of  war,  and  may  be  treated  under  certain 
circumstances  as  a  sufficient  casus  belli.  The  case 
made  by  the  bill  is  the  extreme  one  of  a  total  stop- 
page of  all  commerce  between  the  most  important 
city  in  Louisiana  and  the  entire  State  of  Texas;  and 


24  AMERICAN  SUPREME  COURT 

while  I  fully  agree  that  resort  cannot  be  had  to  this 
Court  to  vindicate  the  rights  of  individual  citizens, 
or  any  particular  number  of  individuals,  where  a 
State  has  presumed  to  prohibit  all  kinds  of  com- 
merce with  the  chief  city  of  another  State,  I  think 
her  motive  for  doing  so  is  the  proper  subject  of 
judicial  inquiry."  ^ 

Whichever  view  be  taken,  the  principle  involved  is  ob- 
viously of  international  importance.  It  is  possible  that 
the  majority  of  the  judges  were  not  entirely  confident  of 
the  soundness  of  their  decision,  for  a  judgment  pro- 
nounced in  a  somewhat  similar  case  only  two  years  later 
seems  to  rest  upon  different  and  firmer  ground. 

The  case  of  Kansas  v.  Colorado,^  decided  in  1902,  arose 
out  of  a  complaint  by  Kansas  that  Colorado  was  wrong- 
fully diverting  the  waters  of  the  Arkansas  River,  which 
flowed  through  the  territory  of  both  States.  The  object 
of  the  diversion  was  to  irrigate  the  dry  lands  of  Colorado, 
but  this  had  the  result,  so  it  was  claimed,  of  impairing 
the  fertility  of  Kansas.  Colorado  denied  the  jurisdiction 
on  the  ground,  successfully  maintained  by  Texas  in  the 
earlier  case,  that  the  suit  was  really  brought  to  protect 
the  interests  of  private  landowners  in  the  State  of 
Kansas.  The  plaintiff  State  presented  her  claim  both  as 
an  individual  landowner,  and  on  behalf  of  her  citizens 
affected  by  the  diversion  of  the  stream.  The  Court, 
without  attempting  to  distinguish  the  earlier  case,  held 
that  the  facts  alleged  presented  a  "  controversy  between 
States  "  suitable  for  determination  by  the  Supreme  Court, 
and  consequently  affirmed  the  jurisdiction. 

The  ordinary  layman  would  no  doubt  consider  that  of 
these  two  cases  Louisiana  v.  Texas  presented  the  stronger 
reasons  for  the  intervention  of  the  Supreme  Court.     In 


1 176  U.  S.,  27. 

*  185  U.  S.,  125.    See  p.  81,  post. 


EXTENT  OF  THE  JURISDICTION  25 

Kansas  v.  Colorado  there  was  at  the  most  a  legitimate 
conflict  of  interests  between  two  riparian  proprietors  as 
to  the  use  of  a  flowing  stream — a  kind  of  dispute  with 
which  the  courts  are  familiar  in  ordinary  life.  There  was 
no  suggestion  that  the  action  of  Colorado  was  inspired 
by  any  hostility  towards  Kansas.  But  in  the  earlier  case, 
if  the  plaintiff's  statement  proved  to  be  correct,  the  policy 
of  Texas  was  actuated  by  a  desire  to  destroy,  under  the 
pretext  of  quarantine  laws,  the  entire  commerce  of  New 
Orleans.  This  is  the  kind  of  action  which  in  inter- 
national affairs  leads  to  war;  and  since  the  main  object 
of  an  international  Court  is  the  prevention  of  war,  it 
seems  difficult  to  understand  why  the  Supreme  Court 
refused  even  to  investigate  Louisiana's  complaint.  The 
injury  complained  of  in  the  later  case,  as  in  the  earlier, 
was  purely  to  proprietary  rights,  and  the  judgment  of  the 
Court  does  not  seem  to  have  turned  upon  the  fact  that  a 
small  piece  of  the  land  involved  was  owned  by  the  State 
of  Kansas  itself. 

The  real  explanation  of  Kansas  v.  Colorado  is  to  be 
found  in  the  intervening  case  of  Missouri  v.  Illinois,^ 
decided  in  1901.  The  complaint  of  Missouri  in  this 
action  was  that  Illinois  was  polluting  the  Mississippi  by 
discharging  crude  sewage  into  it  through  the  Illinois 
River,  and  thus  injuring  the  health  of  the  people  of  Mis- 
souri. Illinois,  like  Texas,  demurred  to  the  jurisdiction 
on  the  ground  that  the  interests  of  individuals  only  were 
affected  and  that  the  question  did  not  concern  Missouri 
as  a  State. 

The  Court,  however,  affirmed  its  jurisdiction  to  hear 
the  case.  Mr.  Justice  Shiras,  who  delivered  the  judg- 
ment of  the  majority,  naturally  felt  the  embarrassment 
caused  by  the  Louisiana  decision,  and  laboriously  en- 
deavoured to  distinguish  it  from  the  case  before  him. 

1 180  U.  S.,  208.    See  p.  79,  post. 


26  AMERICAN  SUPREME  COURT 

His  somewhat  elaborate  explanation  may  be  thus  sum- 
marised in  his  own  words : 

"  The  Court  [in  Louisiana  v.  Texas']  did  not  de- 
cline jurisdiction,  but  exercised  it  in  holding  that  the 
facts  alleged  in  the  bill  did  not  justify  the  Court  in 
granting  the  relief  prayed  for/'  ^ 

This  is  by  no  means  easy  to  reconcile  with  the  actual 
language  of  the  Court  in  the  earlier  case,  but  it  is  scarcely 
worth  while  analysing  the  matter  too  closely  from  the 
point  of  view  of  legal  consistency.  What  really  hap- 
pened was  that  the  judges  changed  their  minds,  and  took 
a  broader  view  of  the  extent  of  their  own  jurisdiction. 
It  may  be  remarked  that  Chief  Justice  Fuller  and  two 
other  judges  dissented  from  the  decision  in  Missouri  v. 
Illinois,  holding  that  no  "  controversy  between  States  " 
was  presented.  In  Kansas  v.  Colorado  the  judgment  was 
unanimous,  and  it  is  evident  that  the  sound  reasoning  of 
Mr.  Justice  Brown  in  Louisiana  v.  Texas  had  gradually 
won  its  way  to  general  acceptance. 

It  will  be  observed  that  by  1902  the  Court  had  thrown 
over  all  remnants  of  the  timidity  with  which  by  a  ma- 
jority it  had  ventured  to  assume  jurisdiction  of  a  boun- 
dary case  in  1838.  At  the  present  day  it  is  probably  true 
to  say  that  there  is  no  genuine  dispute  between  two  States 
which  the  Court  is  not  prepared  to  decide,  if  the  facts  are 
presented  to  it  in  proper  form. 

A  half-hearted  attempt  to  challenge  the  jurisdiction 
was  made  in  1906,  when  Louisiana  filed  a  bill  against 
Mississippi  ^  to  determine  the  boundary  within  which 
each  State  might  regulate  the  fisheries  in  an  arm  of  the 
sea  called  Mississippi  Sound.  The  objection  raised  by 
Mississippi  came  sixty  years  too  late,  and  was  easily 
overruled.  It  is,  however,  worth  remarking  that,  when 
1 180  U.  S.,  240.  2  202  U.  S.,  T.    See  p.  47,  Post. 


EXTENT  OF  THE  JURISDICTION  27 

the  dispute  arose,  each  party  organised  armed  patrols  to 
enforce  its  rights,  and  an  armed  conflict  was  really  only 
averted  by  the  confidence  which  each  of  the  disputants 
f^lt  in  the  Supreme  Court. 

There  remains  to  be  considered  only  one  case  of  a  dis- 
pute between  States  in  which  the  jurisdiction  of  the  Court 
was  again  questioned.  This  is  the  great  case  of  Virginia 
V.  West  Virginia,^  which  in  its  various  aspects  has  en- 
gaged the  attention  of  the  Supreme  Court  repeatedly  since 
1906. 

Like  the  earlier  case  between  the  same  parties,  to  which 
reference  has  already  been  made,^  this  dispute  arose  out 
of  the  separation  of  West  Virginia  from  the  parent  State 
during  the  Civil  War.  The  Wheeling  Convention  of 
1 86 1,  which  organised  the  separation,  undertook  that  the 
new  State  should  assume  a  just  proportion  of  the  public 
debt  of  Virginia  contracted  prior  to  the  ist  January, 
1 86 1.  This  undertaking  was  repeated  in  the  Constitu- 
tion of  West  Virginia,  where  it  was  coupled  with  a 
promise  that  the  legislature  should  ascertain  the  amount 
of  the  debt  "  as  soon  as  may  be  practicable,"  and  provide 
for  its  discharge.  The  substance  of  Virginia's  case  is 
thus  stated  by  Chief  Justice  Fuller : 

"  From  1865  to  1905  various  efforts  were  made 
by  Virginia  through  its  constituted  authorities  to 
effect  an  adjustment  and  settlement  with  West  Vir- 
ginia for  an  equitable  proportion  of  the  public  debt 
of  the  undivided  State,  proper  to  be  borne  and  paid 
by  West  Virginia,  but  all  these  efforts  proved  un- 
availing, and  it  is  charged  that  West  Virginia  re- 
fused or  failed  to  take  any  action  or  do  anything  for 
the  purpose  of  bringing  about  a  settlement  or  ad- 
justment with  Virginia.  The  original  jurisdiction 
of  this  Court  was  therefore  invoked  by  Virginia  to 


1206  U.  S.,  290.    See  pp.  67,  99,  post. 
2  II  Wallace,  39.    Ante,  p.  19. 


28  AMERICAN  SUPREME  COURT 

procure  a  decree  for  an  accounting  as  between  the 
two  States,  and,  in  order  to  a  full  and  correct  ad- 
justment of  the  accounts,  the  adjudication  and  deter- 
mination of  the  amount  due  Virginia  by  West  Vir- 
ginia in  the  premises."  ^ 

In  demurring  to  the  jurisdiction  West  Virginia  main- 
tained that  the  facts  alleged  did  not  constitute  a  "  contro- 
versy between  States  "  in  the  sense  contemplated  by  the 
Constitution;  that  there  was  no  means  of  enforcing  a 
final  decree  for  the  sum  due;  and  that  the  proviso  in 
her  Constitution,  sanctioned  by  Congress,  for  ascertain- 
ing the  amount  of  the  debt  by  the  action  of  her  legis- 
lature took  the  matter  out  of  the  jurisdiction  of  the 
Supreme  Court. 

In  view  of  the  recorded  decisions  of  the  Court  it  was 
impossible  to  expect  that  such  contentions  should  prevail, 
and  they  were  decisively  rejected  by  an  unanimous  Court. 
With  regard  to  the  question  of  enforcing  the  decree  Chief 
Justice  Fuller  said  "  that  it  is  not  to  be  presumed  on 
demurrer  that  West  Virginia  would  refuse  to  carry  out 
the  decree  of  this  Court,"  ^  though  the  Court  might  have 
to  consider  the  course  to  be  adopted  in  the  event  of  such 
an  unpleasant  emergency  actually  arising.  This  decision 
was  rendered  in  1907,  and  the  judges  who  gave  it  doubt- 
less felt  perfectly  confident  that  any  decree  which  they 
might  make  would  be  unhesitatingly  obeyed  by  any  State 
in  the  Union.  Unfortunately  these  hopes  have  not  been 
realised.  A  final  decree  for  a  large  sum  was  made 
against  West  Virginia  in  June,  191 5,  but  for  nearly  four 
years  all  attempts  to  obtain  payment  have  failed,  and  it 
seemed  likely  that  the  Supreme  Court  would  be  faced 
with  the  chief  difficulty  that  must  always  confront  any 
international  court,  the  difficulty  of  enforcing  compliance 
with  its  own  judgments.  At  the  time  of  writing,  how- 
1206  U.  S.,  317.  2206  U.  S.,  319. 


EXTENT  OF  THE  JURISDICTION         29 

ever,  it  is  gratifying  to  know  that  wiser  counsels  have 
prevailed,  and  provision  is  now  (1919)  being  made  by 
the  West  Virginia  legislature  to  satisfy  the  decree. 

The  only  question  remaining  to  be  considered  under 
the  head  of  jurisdiction  is  the  position  before  the 
Supreme  Court  of  the  United  States  itself.  Under  the 
Constitution  ^  the  jurisdiction  extends  "  to  controversies 
to  which  the  United  States  shall  be  a  party;  to  contro- 
versies between  two  or  more  States;  ..."  What  is 
the  exact  meaning  to  be  attached  to  these  words  ? 

The  first  case  of  suit  by  the  United  States  against  a 
State  occurred  in  1890,  when  the  Federal  authorities 
brought  an  action  of  debt  against  North  Carolina  ^  upon 
certain  unpaid  bonds  of  that  State.  No  objection  was 
taken  to  the  jurisdiction  in  this  case,  which  therefore 
need  not  detain  us  further.  But  two  years  later  the  right 
of  the  United  States  to  sue  a  State  was  strongly,  though 
unsuccessfully,  challenged  by  the  State  of  Texas. 

The  bill  in  this  case  ^  was  filed  to  determine  whether 
a  certain  area  of  country  formed  part  of  the  State  of 
Texas  or  of  the  Federal  territory  of  Oklahoma.  The 
case  turned  mainly  upon  the  terms  of  several  treaties  and 
upon  a  great  deal  of  geographical  evidence,  such  as  the 
value  of  various  maps  and  surveys.  Texas  not  only 
denied  the  Federal  title  to  the  land,  but  also  denied  the 
jurisdiction  of  the  Supreme  Court  to  hear  the  case. 

Her  argument  ran  as  follows :  A  sovereign  State  can 
only  be  sued  by  its  own  consent,  and  the  only  consent  is 
that  to  be  found  in  the  terms  of  the  Constitution.  The 
consent  given  there  can  only  be  read  as  a  consent  to  suit 
by  other  States.  Express  consent  would  be  required  to 
a  suit  by  the  United  States,  for  this  would  not  be  a  suit 
between  equals,   since  the  Federal  Government  would 

*  See  p.  7,  ante. 

2  136  U.  S.,  211.    See  p.  61,  post. 

3  143  U.  S.,  621.    See  p.  44,  post. 


30  AMERICAN  SUPREME  COURT 

have  the  advantage  in  a  Federal  Court.  It  was  further 
said  that  the  question  was  political,  not  judicial,  in  its 
nature,  and  certain  objections  of  a  technical  kind  were 
also  raised.  Historically  there  was  good  support  for  this 
argument  in  the  fact  that  at  the  Philadelphia  Convention 
proposals  for  expressly  giving  the  Court  jurisdiction  in 
controversies  between  the  United  States  and  a  State  had 
been  deliberately  rejected  by  the  delegates. 

The  majority  of  the  Court,  in  rejecting  the  Texan 
claim,  relied  mainly  upon  the  words  of  the  Constitution 
which  give  the  Court  jurisdiction  "  in  all  cases  ...  in 
which  a  State  shall  be  a  party.'*  But  they  were  also  im- 
pressed by  what  may  be  called  the  practical  argument, 
that  if  jurisdiction  were  refused,  the  only  alternatives 
would  be  to  settle  the  dispute  either  by  agreement,  of 
which  there  was  no  prospect,  or  by  suit  in  a  Texan  Court 
with  the  consent  of  Texas,  or  in  the  last  resort  by  war. 

The  jurisdiction  was  accordingly  affirmed.  It  is  per- 
haps questionable  whether  such  a  decision  would  have 
entirely  pleased  the  men  of  1787,  but  its  practical  con- 
venience and  good  sense  in  the  twentieth  century  cannot 
be  disputed.  "  It  would  be  difficult,"  said  Mr.  Justice 
Harlan  for  the  majority  of  the  Court,  "  to  suggest  any 
reason  why  this  Court  should  have  jurisdiction  to  deter- 
mine questions  of  boundary  between  two  or  more  States, 
but  not  jurisdiction  of  controversies  of  like  character  be- 
tween the  United  States  and  a  State."  ^ 

It  should  be  added  that  Chief  Justice  Fuller  and  Mr. 
Justice  Lamar  dissented  from  this  decision. 

It  being  clearly  established  that  the  United  States  could 
sue  a  State  of  the  Union  in  the  Supreme  Court,  the  ques- 
tion has  arisen  whether  the  converse  also  holds  good, 
enabling  a  State  to  bring  the  United  States  to  the  bar  of 
the  Court  as  an  unwilling  defendant.    This  problem  was 

1143  u.  S.,  645. 


EXTENT  OF  THE  JURISDICTION  31 

first  presented  by  the  case  of  Kansas  v.  United  States,^ 
decided  in  1907.  The  dispute  concerned  the  ownership 
of  certain  lands  which  had  been  granted  by  Federal 
statute  for  the  purpose  of  railroad  construction.  Coun- 
sel for  the  United  States  demurred  to  the  jurisdiction, 
partly  on  the  ground  that  Kansas  was  only  a  nominal 
party,  and  partly  on  the  ground  that  the  United  States 
had  not  consented  to  be  sued.  With  regard  to  the  latter 
point  the  question  of  jurisdiction  is  not  altogether  clear. 
In  an  earlier  case,  referred  to  in  the  opinion  of  the  Court, 
Mr.  Justice  Brewer  had  said : 

"  The  silence  of  counsel  does  not  waive  the  ques- 
tion, nor  would  the  express  consent  of  the  parties 
give  to  this  Court  a  jurisdiction  which  was  not  war- 
ranted by  the  Constitution  and  laws.  It  is  the  duty 
of  every  court  of  its  own  motion  to  inquire  into  the 
matter  irrespective  of  the  wishes  of  the  parties,  and 
be  careful  that  it  exercises  no  powers  save  those 
conferred  by  law.  Consent  may  waive  an  objection 
so  far  as  respects  the  person,  but  it  cannot  invest  a 
court  with  a  jurisdiction  which  it  does  not  by  law 
possess  over  the  subject-matter."  ^ 

In  the  present  case  the  Court  dismissed  the  bill  for 
want  of  jurisdiction  ^  on  the  ground  that  the  United 
States  had  not  consented  to  be  sued.  This  decision  is  not 
quite  easy  to  reconcile  with  the  dictum  just  quoted  that 
even  consent  cannot  confer  a  jurisdiction  which  does  not 
exist.  The  distinction  drawn  by  the  Court  would  appear 
to  be  that  in  order  to  give  jurisdiction  the  consent  must 
be  by  statute,  either  general  or  special ;  a  consent  on  the 
part  of  the  executive  authority  is  not  sufficient. 

Such  a  general  consent  was  given  in  1855  by  the  Act 
of  Congress  creating  the  Court  of  Claims,  a  tribunal 

1 204  U.  S.,  343. 

2  Minnesota  v.  Hitchcock,  185  U.  S.,  387. 

8204  U.  S,  331. 


32  AMERICAN  SUPREME  COURT 

formed  to  enable  contractual  and  similar  claims  against 
the  United  States  to  be  settled  by  judicial  rather  than  by- 
executive  or  legislative  authority.  Before  this  Court  was 
set  up  the  strict  application  of  the  doctrine  of  sover- 
eignty favoured  in  America  rendered  it  impossible  for  a 
citizen  to  obtain  judicial  investigation  of  any  claim  which 
he  might  have  against  the  Federal  Government.  As  an 
eminent  judge  of  the  Court  once  remarked :  "  The  gov- 
ernment of  the  United  States  holds  itself,  of  nearly  all 
governments,  the  least  amenable  to  the  law." 

In  England  the  Crown  is  nominally  exempt  from  suit 
except  by  its  own  consent,  but  in  practice  the  procedure 
known  as  "  petition  of  right "  enables  any  contractual 
claim  against  the  Crown  to  be  prosecuted  with  the  same 
certainty  of  judicial  treatment  as  obtains  in  a  suit  between 
private  parties.  Since  the  American  Constitution  was  de- 
signed to  be,  in  Marshall's  phrase,  "  a  government  of 
laws,  and  not  of  men,"  it  is  perhaps  remarkable  that  so 
long  a  time  was  suffered  to  elapse  before  any  effective 
remedy  was  provided  against  the  failure  of  executive 
authorities  to  meet  their  obligations. 

The  statutes  constituting  the  Court  did  not  expressly 
provide  for  the  case  of  claims  by  a  State  against  the 
Federal  Government,  and  the  jurisdiction  of  the  Court  to 
hear  such  suits  was  disputed  by  the  United  States  when 
the  question  first  arose  upon  a  claim  presented  by 
Louisiana  in  1887.^  The  jurisdiction  was,  however,  af- 
firmed upon  appeal  by  the  Supreme  Court,  and  has  since 
been  exercised  in  several  similar  cases. 

We  have  already  noticed  in  passing  the  case  of  Florida 
V.  Georgia,^  where  the  Court  permitted  the  United  States 
to  intervene  in  a  boundary  dispute  between  two  States  on 
the  ground  that  Federal  grants  were  in  question  and  that 
the  United  States  had  a  legitimate  interest  in  seeing  that 
1 123  U.  S.,  32.  2  17  Howard,  478.    Ante,  p.  18. 


EXTENT  OF  THE  JURISDICTION         33 

inter-State  boundaries  were  correctly  drawn.  In  this  con- 
nection it  may  be  added  that  in  1907  the  United  States 
again  sought  to  intervene  between  two  States  in  the 
second  phase  of  the  case  of  Kansas  v.  Colorado/-  where 
Kansas  complained  of  the  diversion  by  Colorado  of  the 
waters  of  the  Arkansas  Riv^r.  But  in  this  case  the 
intervention  was  disallowed  by  the  Court  on  the  ground 
that  the  subject-matter  of  the  dispute  was  not  one  of 
those  which  the  Constitution  had  committed  to  the  care 
of  the  Federal  Government.  The  United  States  has 
authority  to  regulate  navigable  waters,  but  the  diversion 
complained  of  did  not  affect  the  stream  in  its  navigable 
portion. 

It  is  clear  from  the  decision  in  this  case  that  any  claim 
of  the  United  States  to  intervene  in  a  dispute  between  two 
States  will  be  somewhat  jealously  regarded  by  the 
Supreme  Court. 

1 206  U.  S.,  46.    See  p.  82,  post. 


P.  4345 


CHAPTER  III 
BOUNDARY  CASES 

A  STUDY  of  the  map  of  the  United  States  will  show 
that  in  the  great  majority  of  cases  the  inter-State  boun- 
daries consist  either  of  rivers  or  of  mathematical  lines. 
Thus,  for  example,  the  Mississippi  gives  a  frontier  to  no 
less  than  ten  States;  each  of  its  two  principal  tributaries, 
the  Ohio  and  the  Missouri,  forms  the  border  of  five  more, 
and  many  lesser  streams  have  also  been  adopted  as  State 
boundaries.  But  even  more  remarkable  is  the  general 
prevalence  in  America  of  the  geometrical  frontier. 
Every  State  in  the  Union  is  in  part  at  least  bounded  by 
an  arbitrary  straight  line,  and  some  of  the  western 
States  have  no  natural  frontiers.  Even  in  the  Rocky 
Mountains  there  has  been  but  little  disposition  to  follow 
watershed  demarcations,  and  the  lines  of  latitude  or 
longitude  are  followed  over  mountain  and  valley  with  a 
complete  disregard  of  physical  possibility. 

From  this  it  will  be  seen  that  the  boundary  cases 
which  the  Supreme  Court  is  called  upon  to  solve  differ 
considerably  from  the  frontier  problems  which  from  time 
to  time  confront  European  statesmen.  In  Europe  these 
disputes  are  usually  of  a  purely  political  character.  The 
difficulty  of  fixing  the  limits  of  Poland,  Roumania,  or 
Yugo-Slavia  arises  not  from  any  uncertainty  as  to  the 
true  course  of  a  river  or  the  accuracy  of  a  survey,  but  in 
historical  events,  strategic  or  economic  requirements,  and 
the  conflicting  wishes  of  diverse  populations.    In  America 

34 


BOUNDARY  CASES  35 

the  inter-State  boundary  disputes,  although  they  have 
occasionally  aroused  strong  feeling,  have  never  since 
Revolutionary  times  been  based  upon  any  serious  conflict 
of  policy  or  ideals/  In  substance  they  have  for  the  most 
part  been  exactly  like  disputes  between  adjoining  land- 
owners in  the  ordinary  courts.  Of  the  cases  noted  in  this 
chapter  only  one,  that  of  Virginia  v.  West  Virginia  in 
1870,^  had  its  origin  in  a  real  political  quarrel,  and  even 
in  that  case  the  solution  of  the  problem  in  the  Supreme 
Court  rested  upon  the  purely  legal  ground  that  Virginia 
had  given  a  valid  consent  under  the  Constitution  to  the 
transfer  of  the  disputed  counties.  It  will  also  be  observed 
that  in  no  case  has  the  decision  of  the  Supreme  Court 
been  influenced  in  any  way  by  the  wishes  of  the  people  in 
the  territory  affected  by  the  decision.  The  argument 
from  long  possession  has  always  had  great  weight  with 
the  Court,  but  neither  Court  nor  counsel  has  ever  ap- 
pealed to  the  "  right  of  self-determination."  The  Court 
is  bound  by  the  Constitution,  and  the  Constitution  admits 
of  no  argument  upon  any  such  ground. 

The  first  boundary  case  to  be  settled  in  the  Supreme 
Court  was  that  of  Rhode  Island  v.  Massachusetts,  which, 
after  many  years  of  the  most  dilatory  proceedings  that 
can  be  imagined,  was  decided  in  favour  of  Massachusetts 
in  1846.^  The  question  between  the  parties  was  whether 
a  line  drawn  in  1642,  and  acted  upon  ever  since,  consti- 
tuted the  true  boundary  between  the  two  States.  Rhode 
Island  contended  that  the  line  as  drawn  did  not  carry  out 
the  directions  of  the  colonial  charters,  and  that  although 
out  of  possession  for  over  two  centuries  she  had  done 
nothing  to  forfeit  her  claim.     Massachusetts  denied  the 

1  Even  parallels  of  latitude  are  capable  of  arousing  passion. 
When  the  question  of  the  Canada-Oregon  boundary  came  up 
in  1846  a  popular  war-cry  of  the  Democratic  party  was  "  Fifty- 
four  forty  or  fight !  " 

2  1 1  Wallace,  39. 
34  Howard,  591. 


36  AMERICAN  SUPREME  COURT 

plaintiff's  construction  of  the  charters,  and  reHed  upon 
the  fact  that  the  existing  line  had  been  settled  by  agree- 
ment between  the  two  colonies  in  1718;  in  addition  she 
pleaded  long  possession  and  the  neglect  of  Rhode  Island 
to  assert  her  claims  in  good  time.  Rhode  Island  admitted 
the  agreement  of  1718,  but  pleaded  that  she  had  accepted 
it  under  a  mistake. 

The  Court  held  that  the  fact  of  any  mistake  had  not 
been  proved,  and  that  Rhode  Island  was  bound  by  the 
agreement  of  1718.  But  the  decision  in  favour  of  Massa- 
chusetts rested  mainly  on  the  argument  from  long  and 
undisturbed  possession. 

"  More  than  two  centuries  have  passed,"  said  Mr. 
Justice  McLean  for  the  Court,  "  since  Massachusetts 
claimed  and  took  possession  of  the  territory  up  to 
the  line  established  by  Woodward  and  Saffrey.  This 
possession  has  ever  since  been  steadily  maintained, 
under  an  assertion  of  right.  It  would  be  difficult  to 
disturb  a  claim  thus  sanctioned  by  time,  however  un- 
founded it  may  have  been  in  its  origin.  .  .  .  For 
the  security  of  rights,  whether  of  States  or  indi- 
viduals, long  possession  under  a  claim  of  title  is 
protected.  And  there  is  no  controversy  in  which 
this  great  principle  may  be  involved  with  greater 
justice  and  propriety  than  in  a  case  of  disputed 
boundary."  ^ 

The  next  case  in  order  of  time  is  that  of  Missouri  v. 
lowqj  which  came  before  the  Court  by  consent  of  both 
States,  and  was  decided  in  1849,^  though  the  consequen- 
tial proceedings  did  not  end  until  1897.^  The  dispute 
turned  upon  the  true  location  of  an  artificial  boundary 
laid  down  by  Congress  when  it  admitted  Missouri  to  the 
Union  in  1820,  and  the  facts  are  of  little  interest  to  any 
but   surveyors.     The    procedure    adopted    is,    however, 

I4  Howard,  638-9.  27  Howard,  660.  ^  165  U.  S.,  118. 


BOUNDARY  CASES  37 

worthy  of  notice,  since  it  became  the  regular  practice  of 
the  Court  in  similar  cases.  The  Court  after  hearing  the 
evidence  and  arguments  decides  upon  the  general  line  to 
be  followed.  Commissioners  are  then  appointed  to  sur- 
vey the  actual  line  upon  the  ground,  and  to  mark  it  with 
suitable  monuments.  They  are  directed  to  make  a  report 
to  the  Supreme  Court  by  a  certain  date,  and  the  States 
have  the  opportunity  of  expressing  their  views  upon  the 
report  thus  presented.  If  no  objection  is  made  or  sus- 
tained, the  commissioners'  report  is  confirmed  by  the 
Court,  and  the  line  thus  surveyed  and  marked  becomes 
the  final  boundary  between  the  States.  The  whole  costs 
of  the  survey  are  to  be  shared  equally  by  the  parties. 

Florida  v.  Georgia  (1854)  ^  has  been  already  noted 
with  regard  to  the  claim  made  by  the  United  States  to 
intervene  in  the  argument,  and  is  not  otherwise  of  general 
interest.  The  next  case,  that  of  Alabama  v.  Georgia  in 
1859,^  was  a  dispute  about  a  river  boundary,  but  the  point 
involved  was  a  small  one.  The  boundary  was  defined  in 
1802  by  an  agreement  between  the  United  States  and 
Georgia  in  the  following  words : 

"  West  of  a  line  beginning  on  the  western  bank  of 
the  Chattahoochee  River,  where  the  same  crosses  the 
boundary  between  the  United  States  and  Spain,  run- 
ning up  the  said  river  and  along  the  western  bank 
thereof." 

The  boundary  thus  described  afterwards  became  the  east- 
ern boundary  of  the  State  of  Alabama,  and  the  sole  ques- 
tion between  the  parties  now  was  whether  the  word 
"  bank  "  was  meant  to  fix  the  line  at  the  high  or  at  the 
low  w^ater  mark  in  the  stream.  In  seeking  for  authority 
upon  this  problem  the  Court  ranged  over  a  wide  field, 
decided  cases,   writings   of  publicists,   and   dictionaries 

I17  Howard,  478.  223  Howard,  505. 


38  AMERICAN  SUPREME  COURT 

being  alike  laid  under  contribution.^  In  the  result  the 
Alabama  claim  of  the  low  water  mark  was  definitely 
rejected,  and  Georgia  was  given  the  high  water  mark, 
exclusive  of  such  ground  as  is  only  covered  by  exceptional 
floods.    The  exact  words  used  are  as  follows : 


"  This  language  implies  that  there  is  ownership  of 
soil  and  jurisdiction  in  Georgia  in  the  bed  of  the 
River  Chattahoochee,  and  that  the  bed  of  the  river 
is  that  portion  of  its  soil  which  is  alternately  covered 
and  left  bare,  as  there  may  be  an  increase  or  diminu- 
tion in  the  supply  of  water,  and  which  is  adequate  to 
contain  it  at  its  average  and  mean  stage  during  the 
entire  year,  without  reference  to  the  extraordinary 
freshets  of  the  winter  or  spring,  or  the  extreme 
droughts  of  the  summer  or  autumn."  ^ 

It  is  perhaps  most  convenient  to  treat  in  this  chapter 
the  first  case  of  Virginia)  v.  West  Virginia  (1870),^ 
though  in  substance  it  is  not  so  much  a  boundary  dispute 
as  a  question  of  the  validity  of  a  political  act.  The  facts 
of  this  case  have  been  briefly  referred  to  in  the  previous 
chapter.  The  Court  having  overruled  the  defendant 
State's  demurrer  to  the  jurisdiction,  the  question  for  de- 
cision was  whether  Virginia  had  validly  consented  to  the 
transfer  of  the  two  disputed  counties  to  the  new  State, 
and,  if  so,  whether  Congress  had  also  given  an  adequate 
consent.  A  majority  of  the  Court  held  that  Virginia  was 
bound  by  the  action  of  the  minority  legislature  with 
Northern  sympathies  which  had  assented  to  the  trans- 
action in  1862,  and  that  the  repudiation  of  its  act  in 
December,    1865,   was   of  no  effect.     The  consent  of 

1  Howard  observes :  "  These  arguments  [of  counsel]  partook 
rather  of  the  character  of  a  diplomatic  negotiation  than  a 
forensic  dispute,  and  the  reporter  declines  to  attempt  to  abbrevi- 
ate them  in  a  law  book"   (23  Howard,  510). 

223  Howard,  514.  ^  11  Wallace,  39. 


BOUNDARY  CASES  39 

Congress  was  given  by  a  resolution  of  the  loth  March, 
1866.  Three  judges  dissented  from  this  decision,  and 
held  that  Virginia  had  effectively  repealed  the  acts  passed 
by  the  minority  legislature  during  the  war,  since  the  re- 
pealing act  was  passed  before  the  consent  of  Congress 
had  been  obtained. 

It  may  be  observed  that  in  this  case  the  inhabitants  of 
the  two  counties  had  by  plebiscite  signified  their  wish  to 
belong  to  West  Virginia,  but  this  fact  in  no  way  in- 
fluenced the  judgment  of  the  Court.  Bound  as  it  was  by 
the  terms  of  the  Constitution,  the  Court  would  not  have 
been  at  liberty  to  consider  any  such  arguments.  All  it 
could  do  was  to  decide  whether  all  the  conditions  pre- 
scribed for  the  erection  of  a  new  State  had  been  properly 
fulfilled. 

The  case  of  Missouri  v.  Kentttcky,  also  decided  in 
1870,^  is  one  of  several  boundary  disputes  arising  out 
of  changes  in  a  river  bed.^  The  treaty  of  1763  between 
Great  Britain,  France,  and  Spain,  upon  which  many  of 
the  existing  State  frontiers  depend,  fixed  the  middle  of 
the  Mississippi  as  the  boundary  between  the  British  and 
the  French  possessions  in  North  America.  Kentucky  was 
admitted  to  the  Union  in  1792,  being  formed  out  of  ter- 
ritory belonging  to  Virginia,  and  the  middle  of  the  Mis- 
sissippi was  made  her  western  boundary.  Missouri  was 
admitted  in  1820,  the  same  line  being  taken  as  her  eastern 
frontier.  The  dispute  related  to  a  piece  of  land  known 
as  Wolf  Island,  lying  in  the  Mississippi  about  twenty 
miles  below  the  mouth  of  the  Ohio.  Originally  the  main 
stream  of  the  river  flowed  west  of  Wolf  Island,  and  the 
eastern    or    Kentucky    channel    was    only    occasionally 

1  II  Wallace,  395- 

2  Cases  arising  out  of  the  sarrue  cause  are  very  common  in 
the  courts  of  British  India,  and  have  been  decided  upon  sub- 
stantially the  same  principles  as  have  guided  the  Supreme  Court. 
The  diversions  of  the  great  Indian  rivers  are  often  much  more 
extensive  than  those  described  in  this  chapter. 


40  AMERICAN  SUPREME  COURT 

navigable.  In  the  course  of  time  the  river  gradually 
shifted,  until  at  the  date  of  the  suit  the  main  stream 
flowed  east  of  the  island.  Jurisdiction  over  the  land  in 
question  had  at  all  times  been  exercised  by  Kentucky. 
Upon  these  facts  the  Court  unanimously  decided  in 
favour  of  Kentucky,  the  law  being  thus  laid  down  by 
Mr.  Justice  Davis : 

"  If  Wolf  Island  in  1763  or  in  1820  or  at  any 
intermediate  period  between  these  dates,  was  east  of 
this  line,  the  jurisdiction  of  Kentucky  rightfully  at- 
tached to  it.  If  the  river  has  subsequently  turned 
its  course,  and  now  runs  east  of  the  island,  the  status 
of  the  parties  to  this  controversy  is  not  altered  by 
it,  for  the  channel  which  the  river  abandoned  re- 
mains, as  before,  the  boundary  between  the  States, 
and  the  island  does  not,  in  consequence  of  this  action 
of  the  water,  change  its  owner.*'  ^ 

Very  similar  to  this  is  the  case  of  Indiana  v.  Kenttccky, 
decided  in  1890,^  which  concerned  a  strip  of  land  known 
as  Green  River  Island  on  the  north  side  of  the  Ohio 
River.  The  evidence  showed  that,  when  Kentucky  be- 
came a  State  in  1792,  the  river  flowed  north  of  the 
island,  and  continued  to  do  so  after  the  admission  of 
Indiana  to  the  Union  in  18 16.  At  the  time  of  suit 
gradual  changes  in  the  stream  had  reduced  the  northern 
channel  to  little  more  than  a  ditch,  and  the  island  was 
now  claimed  by  Indiana.  J^^risdiction  over  the  land  in 
dispute  had  always  been  exercised  by  Kentucky. 

The  issue  between  the  parties  was  really  one  of  his- 
torical fact,  since  the  principle  of  law  had  been  clearly 
laid  down  in  Missouri  v.  Kentucky.  The  Court  having 
come  to  the .  conclusion  that  the  river  originally  flowed 
north  of  Green  Island  it  naturally  followed  that  the  de- 
cision was  again  in  favour  of  Kentucky: 

1 II  Wallace,  401.  2  136  u.  S.,  479. 


BOUNDARY  CASES  41 

"  Her  dominion  and  jurisdiction  continue  as  they 
existed  at  the  time  she  was  admitted  into  the  Union, 
unaffected  by  the  action  of  the  forces  of  nature  upon 
the  course  of  the  river."  ^ 

And  commenting  upon  the  long  exercise  of  jurisdiction 
by  Kentucky  the  Court  observed: 

"  It  is  a  principle  of  public  law  universally  recog- 
nised that  long  acquiescence  in  the  possession  of 
territory  and  in  the  exercise  of  dominion  and  sover- 
eignty over  it,  is  conclusive  of  the  nation's  title  and 
rightful  authority."  ^ 

The  rivers  of  the  Mississippi  basin  are  somewhat  er- 
ratic in  their  behaviour,  and  the  next  case,  that  of 
Nebraska  v.  Iowa  in  1892,^  arose  out  of  a  sudden  and 
violent  change  in  the  course  of  the  Missouri  River.  By 
the  statutes  admitting  the  two  States  into  the  Union  their 
common  boundary  had  been  fixed  as  the  middle  of  the 
main  channel  of  the  stream.  "  In  1877,"  to  quote  the  lan- 
guage of  the  Court,  "  the  river  above  Omaha,  which  had 
pursued  a  course  in  the  nature  of  an  ox-bow,  suddenly  cut 
through  the  neck  of  the  bow  and  made  for  itself  a  new 
channel."  * 

The  decision  of  the  case  was  based  upon  a  distinction 
known  to  students  of  Roman  law  as  the  distinction  be- 
tween "  avulsion  "  and  "  accretion." 

"  It  is  settled  law,"  said  Mr.  Justice  Brewer  for 
the  whole  Court,  "  that  when  grants  of  land  border 
on  running  water,  and  the  banks  are  changed  by 
that  gradual  process  known  as  accretion,  the  riparian 
owner's  boundary  line  still  remains  the  stream, 
although,  during  the  years,  by  this  accretion,  the 
actual  area  of  his  possessions  may  vary.    ...   It 

1 136  U.  S.,  508.  a  143  U.  S.,  359. 

2  136  U.  S.,  510.  *  143  U.  S.,  370. 


42  AMERICAN  SUPREME  COURT 

is  equally  well  settled,  that  where  a  stream,  which  is 
a  boundary,  from  any  cause  suddenly  abandons  its 
old  and  seeks  a  new  bed,  such  change  of  channel 
works  no  change  of  boundary;  and  that  the  boun- 
dary remains  as  it  was,  in  the  centre  of  the  old 
channel,  although  no  water  may  be  flowing  therein. 
This  sudden  and  rapid  change  of  channel  is  termed 
in  the  law  avulsion."  ^ 

The  Court  was  here  applying  a  well-established  principle 
which  writers  on  international  law  have  borrowed  from 
the  civil  law  of  Rome.  The  case  did  not  admit  of  a 
decree  entirely  in  favour  of  either  party,  since  both  ac- 
cretion and  avulsion  had  contributed  to  the  changes  in 
the  channel  of  the  Missouri  River. 

"  The  only  thing  which  distinguishes  this  river 
from  other  streams  in  the  matter  of  accretion  is  in 
the  rapidity  of  the  change  caused  by  the  velocity  of 
the  current;  and  this  in  itself,  in  the  very  nature  of 
things,  works  no  change  in  the  principles  underlying 
the  rule  of  law  in  respect  thereto^.  .  .  .  The  boun- 
dary therefore  between  Iowa  and  Nebraska  is  a 
varying  line  so  far  as  affected  by  these  changes  of 
diminution  and  accretion  in  the  mere  washing  of  the 
waters  of  the  stream."  ^ 

Having  laid  down  the  principles  of  law  applicable  to  the 
case,  the  Court  declined  to  make  any  decree,  and  sug- 
gested to  the  parties  that  the  line  might  now  be  fixed  by 
agreement.  This  was  accordingly  done,  and  a  few 
months  later  the  agreed  line  was  incorporated  in  a  de- 
cree of  the  Court.^ 

The  case  of  Iowa  v.  Illinois  (1893)  *  turned  upon  a 
comparatively  small  point.  The  boundary  between  the 
two  States  was  "  the  middle  of  the  Mississippi,"  a  line 

1 143  U.  S.,  360-1.  3 14s  U.  S.,  519. 

2 143  u.  S.,  369-70.  *  147  U.  S.,  I. 


BOUNDARY  CASES  43 

inherited  from  the  Franco-British  treaty  of  1763.  The 
river  was  spanned  by  a  bridge  between  the  town  of 
Hamilton  in  Iowa  and  the  town  of  Keokuk  in  Illinois, 
and  the  question  was  to  what  point  in  the  bridge  the 
taxing  powers  of  each  State  extended.  Iowa  claimed 
that  the  mathematical  centre  of  the  river  was  the  true 
boundary,  while  Illinois  argued  for  the  centre  of  the 
main  navigable  channel.  The  decree  of  the  Court  was 
given  in  favour  of  Illinois,  a  decision  supported  by  the 
consent  of  writers  on  international  law  and  clearly  in 
accordance  with  practical  convenience.  As  the  Court 
remarked :  "  The  interest  of  each  State  in  the  navigation 
of  the  river  admits  of  no  other  line." 

In  the  same  year  was  decided  the  case  of  Virginia  v. 
Tennessee,^  an  ancient  dispute  as  to  the  true  location  of 
a  surveyor's  line.  Virginia  claimed  that  the  existing  line 
was  from  two  to  eight  miles  too  far  north  of  the  latitude 
of  36°  30',  which  was  the  line  fixed  by  the  English 
charters. '  Tennessee  contended  that  the  existing  line  had 
been  fixed  by  joint  agreement  in  1803  and  acted  upon 
ever  since.  Although  the  Constitution  (Art.  I,  Sec.  10) 
forbids  the  States  to  enter  into  "  any  agreement  or  com- 
pact "  without  the  consent  of  Congress,  counsel  for  Ten- 
nessee argued  that  this  prohibition  was  only  intended  to 
apply  to  agreements  which  might  affect  the  political  bal- 
ance of  power  in  the  Union  or  the  supremacy  of  the 
United  States.  It  would  be  manifestly  absurd  that  the 
States  should  be  debarred  from  the  convenience  of  direct 
negotiation  upon  minor  matters.  In  any  event,  so  it  was 
urged,  the  consent  of  Congress  in  this  particular  case 
might  fairly  be  inferred  from  conduct. 

These  arguments  found  favour  with  the  Court,  which 
accordingly  decided  in  favour  of  the  existing  line,  as 
claimed  by  Tennessee.  Subsequent  proceedings  carried 
1 148  U.  S.,  503. 


44  AMERICAN  SUPREME  COURT 

the  case  on  for  another  ten  years,  the  report  of  the 
boundary  commissioners  being  finally  confirmed  by  the 
Court  in  1903/ 

The  case  of  the  United  States  v.  Texas,  which  was 
finally  decided  in  1896,^  is  more  important  with  regard 
to  its  subject-matter  than  most  of  the  boundary  cases, 
for  the  territory  in  question  amounted  to  more  than  a 
million  and  a  half  acres.  The  demurrer  of  Texas  to  the 
jurisdiction  was  overruled  in  1892,^  but  four  years 
elapsed  before  the  case  came  on  for  final  hearing.  The 
controversy  is  extremely  complicated,  involving  as  it  does 
the  consideration  of  numerous  treaties  together  with  the 
examination  of  maps,  surveys,  and  other  geographical 
evidence.  So  far  as  the  facts  can  be  shortly  stated,  they 
are  as  follows : 

Texas  separated  from  Mexico  in  1836  and  was  ad- 
mitted to  the  Union  in  1845.  1*^  frontier  was  therefore 
determined  by  the  earlier  treaties  between  the  United 
States  on  the  one  hand  and  Spain  or  Mexico  on  the  other. 
Of  these  the  most  important  is  the  Spanish- American 
treaty  of  1819,  which  fixed  the  frontier  as  follows : 

"  The  boundary  line  between  the  two  countries 
west  of  the  Mississippi,  shall  begin  on  the  Gulf  of 
Mexico  at  the  mouth  of  the  River  Sabine,  in  the  sea, 
continuing  north,  along  the  western  bank  of  that 
river  to  the  32nd  degree  of  latitude;  thence  by  a  line 
due  north  to  the  degree  of  latitude  where  it  strikes 
the  Rio  Roxo  of  Natchitoches,  or  Red  River;  then 
following  the  course  of  the  Rio  Roxo,  westward,  to 
the  degree  of  longitude  100  west  from  London  and 
23  from  Washington;  then,  crossing  the  said  Red 
River,  and  running  thence  by  a  line  due  north  to  the 
River  Arkansas;  thence,  following  the  course  of  the 
southern  bank  of  the  Arkansas  to  its  source  in  lati- 

2 162  U.  S,  I. 


1 190  U.  S.,  64. 

8  143  U.  S.,  621.    Ante,  p.  29. 


BOUNDARY  CASES  45 

tude  42  north ;  and  thence,  by  that  parallel  of  lati- 
tude, to  the  South  Sea.  The  whole  being  as  laid 
down  in  Melish's  map  of  the  United  States,  pub- 
lished at  Philadelphia,  improved  to  the  first  of 
January,  18 18.    .    .    ." 

This  line  was  repeated  in  the  treaty  with  Mexico  of  1828, 
and  in  an  act  passed  by  the  Republic  of  Texas  in  1836. 
Texas  was  admitted  to  the  Union  by  resolution  of  Con- 
gress in  1845,  ^^^  t)y  Act  of  Congress  in  1850  the 
borders  of  Texas  were  defined  as  commencing  "  at  the 
point  at  which  the  meridian  of  one  hundred  degrees  west 
from  Greenwich  is  intersected  by  the  parallel  of  thirty- 
six  degrees  thirty  minutes  north  latitude." 

As  the  contracting  parties  were  dealing  for  the  most 
part  with  a  very  unsettled  and  imperfectly  surveyed 
country,  it  is  not  unnatural  that  disputes  arose  as  to  the 
interpretation  of  these  documents.  The  first  question 
arose  as  to  the  identity  of  the  "  Red  River."  Texas  con- 
tended that  the  treaty  line  followed  the  stream  marked 
as  the  **  North  Fork  "  on  the  accompanying  sketch,  while 
the  United  States  claimed  that  the  southern  branch,  other- 
wise known  as  the  "  Prairie  Dog  Town  Fork,"  was  the 
true  "  Red  River."  The  words  of  the  treaty,  "  following 
the  course  of  the  Rio  Roxo,  westward,'*  certainly 
favoured  the  Federal  argument.  To  decide  this  point  an 
immense  amount  of  geographical  evidence  was  investi- 
gated by  the  Court,  every  available  map  and  book  being 
carefully  examined.  In  the  result  the  Court  upheld  the 
claim  of  the  United  States. 

A  further  question  arose  as  to  the  one  hundredth 
meridian.  On  Melish's  very  imperfect  map  this  was 
admittedly  misplaced  more  than  a  hundred  miles  too  far 
to  the  east.  Texas  contended  that,  since  the  map  had 
been  expressly  made  a  part  of  the  treaty,  the  parties  were 
bound  by  the  meridian  as  Melish  had  marked  it,  irrespec- 


46 


AMERICAN  SUPREME  COURT 


tive  of  its  astronomical  correctness.    Upon  this  ingenious 
argument  the  Court  remarked : 


"  Melish's  map  of  1818  was  taken  as  a  general 
basis  for  the  adjustment  of  boundaries,  but  the 
rights  of  the  two  nations  were  made  subject  to  the 
location  of  the  lines,  with  more  precision,  at  a  sub- 
sequent time,  by  commissioners  and  surveyors  ap- 
pointed by  the  respective  governments.  So  far  as  is 
disclosed  by  the  diplomatic  correspondence  that  pre- 
ceded the  treaty,  the  negotiators  assumed  for  the 
purposes  of  a  settlement  of  their  controversy  that 
Melish's  map  was  in  the  main  correct.  But  they 
did  not  and  could  not  know  that  it  was  accurate  in 
all  respects.  ...  It  was  to  be  fixed  with  more 
precision,  and  designated  with  more  exactness  by 
representatives  of  the  two  nations."  ^ 

1 162  U.  S.,  38. 


BOUNDARY  CASES  47 

And  the  Court  further  pointed  out  that  the  reference  in 
the  Act  of  Congress  of  1850  was  obviously  to  the  true 
meridian.  Texas  herself,  in  fixing  the  limits  of  her  coun- 
ties, had  also  repeatedly  acted  upon  the  true  line.  The 
case  therefore  resulted  in  a  decree  in  favour  of  the  United 
States. 

The  unsuccessful  attempt  of  Texas  to  maintain  a 
treaty  line  founded  upon  a  blunder  may  be  contrasted 
with  a  similar,  but  little  known  case  in  Europe.  By  the 
Treaty  of  the  Pyrenees  in  1659  Spain  ceded  to  France 
"  thirty-three  villages  "  of  the  Cerdagne  Valley  in  the 
eastern  Pyrenees.  It  was  afterwards  discovered  that  one 
village,  called  Llivia,  was  legally  entitled  to  be  called  a 
"  town."  Spain  thereupon  claimed  that  Llivia  was  not 
included  in  the  cession,  and  this  claim  was  admitted,  so 
that  the  place  remains  to  this  day  as  an  island  of  Spanish 
territory  in  the  soil  of  France. 

The  case  of  Missouri  v.  Nebraska  (1904)  ^  needs  no 
more  than  a  passing  notice,  since  the  principle  of  law 
governing  its  decision  had  been  already  well  settled.  On 
the  5th  July,  1867,  the  Missouri  River  changed  its  course 
in  a  few  hours  and  cut  a  new  channel  through  a  narrow 
neck  of  land.  The  old  channel  soon  dried  up,  thus  leav- 
ing a  piece  of  Nebraska  land  attached  to  the  Missouri 
shore.  This  being  a  clear  case  of  "  avulsion,"  the  Court 
had  no  difficulty  in  deciding  that  the  title  of  Nebraska  to 
the  land  was  unaffected  by  the  diversion  in  the  course  of 
the  river. 

The  next  case  to  be  considered,  that  of  Louisiana  v. 
Mississippi  in  1906,^  is  of  more  general  international  in- 
terest, because  it  involves  a  dispute  as  to  rights  in  terri- 
torial waters  of  the  sea.  A  reference  to  the  map  will 
show  that  at  the  Gulf  of  Mexico  the  two  States  are  sepa- 
rated by  an  arm  of  the  sea  called  Mississippi  Sound.    The 

*  196  U.  S.,  23.  2  202  U.  S.,  I  and  50. 


48  AMERICAN  SUPREME  COURT 

conflict  arose  through  the  claim  of  each  State  to  regulate 
the  oyster  fisheries  in  these  waters.  Matters  had  in  fact 
gone  so  far  that  each  party  had  organised  armed  patrols 
to  enforce  its  jurisdiction,  so  it  is  probable  that  the 
judicial  settlement  of  the  controversy  prevented  a  certain 
amount  of  bloodshed. 

The  history  of  the  boundaries  begins  with  the  treaty 
of  1 716  between  Great  Britain,  France,  and  Spain,  and 
was  followed  by  the  Court  through  all  the  various  trans- 
actions affecting  the  Louisiana  Territory  down  to  the 
admission  of  the  two  States  to  the  Union.  It  is  unneces- 
sary here  to  examine  each  of  the  treaties  in  detail,  since 
in  each  the  disputed  boundary  is  defined  in  substantially 
the  same  terms.  We  may  begin  with  the  Act  of  Congress 
of  181 1,  passed  to  enable  Louisiana  to  enter  the  Union, 
which  thus  defines  the  line : 

"...  along  the  middle  of  the  said  river  [Iber- 
ville] and  Lakes  Maurepas  and  Pontchartrain,  to  the 
Gulf  of  Mexico;  thence,  bounded  by  the  said  Gulf, 
to  the  place  of  beginning :  including  all  islands  with- 
in three  leagues  of  the  coast.   .    .    ." 

Louisiana  was  admitted  a  State  by  Act  of  Congress  in 
the  next  year,  and  the  Act  endowed  her  with  additional 
territory  to  the  north  of  the  lakes  already  mentioned 

"  to  the  eastern  mouth  of  the  Pearl  River ;  thence 
up  the  eastern  branch  of  the  Pearl  River  to  the 
31st  degree  of  north  latitude;  ..." 

When  Mississippi  was  admitted  to  the  Union  in  181 7 
the  Act  of  Congress  defined  her  territory  as 

"  including  all  the  islands  within  six  leagues  of 
the  shore,  to  the  most  eastern  junction  of  Pearl 
River  and  Lake  Borgne." 


BOUNDARY  CASES 


49 


P-  4345 


50  AMERICAN  SUPREME  COURT 

A  glance  at  the  map  will  show  at  once  that  these  two 
grants,  if  read  literally,  are  conflicting,  since  there  are 
certain  islands  which  lie  both  within  three  leagues  of  the 
Louisiana  mainland  and  within  six  leagues  of  Missis- 
sippi. Such  a  conflict  of  language,  if  it  existed,  could 
only  be  resolved  in  favour  of  Louisiana  as  the  earlier  of 
the  two  grantees,  since  Congress  has  no  power  to  di- 
minish the  territory  of  a  State  without  the  State's  con- 
sent. Accordingly  the  Court  ruled  that  the  words  in 
the  Mississippi  Act  must  be  read  as  applying  only  to  the 
chain  of  alluvial  islands  lying  parallel  to  the  Mississippi 
shore,  and  adjudged  to  Louisiana  all  the  islands  border- 
ing her  own  mainland  and  south  of  the  main  channel  of 
the  Sound.  Furthermore,  as  counsel  for  Louisiana 
pointed  out,  and  the  Court  agreed : 

"  Louisiana's  title  to  the  disputed  territory  is  con- 
firmed by  prescription,  usucaption,  acquiescence,  and 
specific  acknowledgment  by  the  State  of  Mississippi. 
.  .  .  The  disputed  territory  has  always  been  sub- 
ject to  the  sovereignty  of  Louisiana,  and  has  yielded 
taxes  to  her  exclusively  according  to  the  assess- 
ments laid  by  her  officers.  .  .  .  The  State  of  Mis- 
sissippi has  recognised  the  disputed  territory  as  being 
the  property  of  the  State  of  Louisiana,  and  her 
present  boundary  pretension  is  but  a  matter  of 
recent  creation  after  long  years  of  recognition  of, 
and  acquiescence  in,  Louisiana's  ownership  and  sov- 
ereignty. It  was  only  after  the  oyster  fishermen  of 
Mississippi  by  their  wasteful  system  of  fishing  had 
either  fished  up  or  destroyed  all  of  the  Mississippi 
oysters  of  any  value  that  these  fishermen  began  to 
invade  Louisiana  waters  in  search  of  them.  Until 
recent  years  the  Louisiana  fisheries  were  open  to  all, 
but  are  now  closed  to  all  except  her  citizens.  It  was 
the  exercise  of  this  right  that  incurred  Mississippi's 
displeasure  and  brought  about  this  suit."  ^ 

1202   U.    S.,   26. 


BOUNDARY  CASES  51 

The  Court  further  held,  following  a  decision  of  Lord 
Stowell  in  the  English  Prize  Court,  that  alluvial  islands 
are  appendages  of  the  shores  from  which  they  are  formed. 

Mississippi's  claim  to  the  southern  group  of  islands 
was  thus  decisively  rejected  by  an  unanimous  Court.  It 
remained  to  lay  down  the  rule  for  fixing  the  boundary 
in  the  water  area.  The  Court  decided  this  upon  a  prin- 
ciple known  to  writers  on  international  law  as  the  doc- 
trine of  the  thalweg  or  "  valley  way,"  which  means  that 
the  middle  of  the  main  navigable  channel  is  to  be  taken  as 
the  boundary.  The  Court  had  already  applied  this  doc- 
trine to  the  case  of  an  inland  river  boundary  in  Iowa  v. 
Illinois,  and  now  laid  down,  in  the  words  of  Chief  Justice 
Fuller, 

"  that,  on  occasion,  the  principle  of  the  tlialweg 
is  applicable,  in  respect  of  water  boundaries,  to 
sounds,  bays,  straits,  gulfs,  estuaries,  and  other  arms 
of  the  sea."  ^ 

It  is  obvious  that  this  doctrine  can  have  no  application  to 
the  open  sea  or  to  enclosed  waters  that  are  navigable  over 
their  whole  area.  Counsel  for  Mississippi  therefore 
maintained  that  in  this  case  it  did  not  apply  beyond  the 
point  where  the  Rigolets  channel  entered  Lake  Borgne, 
which  they  argued  to  be  open  sea  forming  part  of  the 
Gulf  of  Mexico.  But  in  point  of  fact  the  bay  consists  of 
comparatively  shallow  water  except  in  the  main  channel, 
and  the  Court  therefore  held  that  the  doctrine  of  the 
thalweg  applied. 

The  judgment  of  the  Court  accordingly  went  in  favour 
of  Louisiana,  and  Mississippi  was  restrained  by  injunc- 
tion "  from  disputing  the  sovereignty  and  ownership  of 
the  State  of  Louisiana  in  the  land  and  water  territory 
south  and  west  of  said  boundary  line  as  laid  down  on  the 

12Q2  U.  S.,  50. 


52  AMERICAN  SUPREME  COURT 

foregoing  map."  It  may  be  added  that  the  usual  prac- 
tice of  the  Court  in  these  boundary  cases  was  to  make 
each  party  bear  its  own  costs  and  share  the  costs  of  any 
survey  that  might  be  necessary.  But  in  this  case,  as 
Mississippi  was  clearly  a  wrongdoer,  she  was  ordered  to 
pay  the  costs  of  the  suit.^ 

Washington  v.  Oregon  (1908)  ^  is  another  case  rais- 
ing a  question  of  boundaries  in  tidal  waters.  The  defini- 
tion of  the  boundary  is  contained  in  the  Act  of  Congress 
of  1859,  admitting  Oregon  to  the  Union : 


"  Beginning  one  marine  league  at  sea  due  west 
from  the  point  where  the  forty-second  parallel  of 
north  latitude  intersects  the  same ;  thence  northerly, 
at  the  same  distance  from  the  line  of  the  coast,  lying 
west  and  opposite  the  State,  including  all  islands 
within  the  jurisdiction  of  the  United  States,  to  a 
point  due  west  and  opposite  the  middle  of  the  north 
ship  channel  of  the  Columbia  River;  thence,  easterly 
to  and  up  the  middle  channel  of  said  river,  and, 
where  it  is  divided  by  islands,  up  the  middle  of  the 
widest  channel  thereof,  to  a  point  near  Fort  Walla 
Walla." 


The  Act  of  1889  admitting  the  State  of  Washington  was 
in  substantially  the  same  terms. 

In  1859  the  river  had  two  main  channels,  both  used  by 
ships,  and  Congress  fixed  the  boundary  in  the  north  one. 
In  the  course  of  time  the  north  channel  gradually  became 
unnavigable,  and  commerce  entered  the  Columbia  River 
by  the  south  channel  only.  Washington  now  argued  that 
the  boundary  between  the  two  States  had  likewise  shifted 
to  the  south  channel,  relying  on  the  doctrine  of  the 
thalweg  as  laid  down  in  the  case  of  Louisiana  v.  Missis- 
sippi.   But  in  this  case  the  application  of  the  doctrine  was 

1202  U.  S.,  59.  2  211  U.  S.,  127. 


BOUNDARY  CASES  53 

qualified  by  the  fact  that  Congress  had  expressly  defined 
the  boundary  as  lying  in  the  north  channel. 

"  The  Courts/'  said  Mr.  Justice  Brewer,  "  have  no 
power  to  change  the  boundary  thus  prescribed  and 
establish  it  at  the  middle  of  some  other  channel. 
That  remains  the  boundary,  although  some  other 
channel  may  in  the  course  of  time  become  so  far 
superior  as  to  be  practically  the  only  channel  for 
vessels  going  in  and  out  of  the  river.  .  .  .  The 
boundary  between  the  two  States  is  the  centre  of  the 
north  channel,  changed  only  as  it  may  be  from  time 
to  time  through  the  processes  of  accretion."  ^ 

In  the  next  year  Washington  applied  for  a  rehearing 
of  the  case,  and  attempted  to  persuade  the  Supreme  Court 
that  it  had  taken  a  wrong  view  of  the  facts.^  The  Court, 
however,  saw  no  reason  to  alter  its  original  opinion,  and 
concluded  the  case  with  a  suggestion  to  the  parties  that 
they  were  now  in  a  position  to  settle  their  differences  by 
agreement. 

Missouri  v.  Kansas  (1908)  ^  is  another  of  the  "mid- 
channel  "  cases,  but  one  of  minor  practical  importance,  a 
small  island  in  the  Missouri  River  near  Kansas  City  being 
the  only  territory  in  dispute.  By  gradual  erosion  of  the 
banks  the  main  channel  of  the  stream  had  come  to  flow 
east  of  the  island.  The  Court  held  that  the  boundary 
followed  the  main  channel  in  such  a  case,  and  the  island 
was  consequently  awarded  to  Kansas.  The  case  illus- 
trates the  effect  of  "  accretion "  as  distinguished  from 
**  avulsion." 

A  somewhat  complicated  case  is  that  of  Maryland  v. 
West  Virginia  (19 10),*  in  which  two  distinct  issues  were 
presented.    One  question  arose  upon  the  correct  point  of 

1211  U.  S.,  135-6.  3  213  U.  S.,  78. 

2  214  U.  S.,  205.  *  217  U.  S.,  I  and  577. 


54  AMERICAN  SUPREME  COURT 

origin  for  a  surveyor's  line,  and  the  other  question  was 
whether  the  boundary  on  the  right  bank  of  the  Potomac 
River  should  be  reckoned  from  high  or  low  water  mark. 
With  regard  to  the  first  question,  it  was  agreed  that  the 
line  in  question  should  start  from  a  point  described  in 
an  English  charter  of  1632  as  "  the  first  fountain  of  the 
river  Potomac,"  and  thence  due  north  to  the  southern 
border  of  Pennsylvania.  The  parties  differed  as  to  which 
of  two  mountain  streams  was  to  be  regarded  as  the  source 
of  the  Potomac,  and  the  difference  involved  a  strip  of 
land  about  thirty-seven  miles  long  by  a  mile  and  a  quarter 
wide.  The  controversy  was  of  ancient  standing,  and  in 
1746  a  decree  of  the  King  in  Council  had  fixed  the  point 
in  favour  of  Virginia,  predecessor  in  title  to  West  Vir- 
ginia, and  it  had  been  marked  by  a  monument  called  the 
"  Fairfax  Stone."  From  that  point  a  line  had  been  run 
by  a  surveyor  named  Deakins  in  1788.  Maryland  had 
protested  then  and  often  afterwards  against  the  correct- 
ness of  this  survey,  but  in  practice  the  Deakins  line  had 
always  been  acted  upon  by  the  inhabitants,  and  had  even 
been  recognised  in  Maryland  grants.  Knowing  the  im- 
portance which  the  Court  always  attached  to  long  posses- 
sion, the  reader  will  easily  gather  from  these  facts  that 
the  decision  on  this  point  was  bound  to  be  in  favour  of 
West  Virginia. 

With  regard  to  the  other  question,  the  charter  granted 
to  Lord  Baltimore  in  1632  gave  him  ownership  of  the 
Potomac  "  to  the  farther  bank  of  the  said  river,"  and 
the  only  doubt  that  could  arise  was  whether  this  extended 
to  high  or  only  to  low  water  mark.  Here  again  the 
argument  from  possession  and  from  the  conduct  of  the 
parties  was  decisive  of  the  matter.  The  title  of  West  Vir- 
ginia was  derived  from  her  parent  State  of  Virginia. 
From  the  earliest  times  Virginia  had  treated  the  soil 
down  to  low  water  mark  as  her  own,  and  a  compact 


BOUNDARY  CASES  55 

with  Maryland  in  1785  had  expressly  recognised  her 
right  of  constructing  "  wharves  and  other  improve- 
ments "  on  the  shore.  Upon  the  whole  case  a  decree  was 
accordingly  made  in  favour  of  West  Virginia,  with  the 
usual  provisions  for  a  detailed  survey  of  the  boundaries, 
the  costs  being  shared  equally  by  the  parties.^ 

The  reader  will  recollect  that  in  the  case  of  Alabama 
V.  Georgia  (1859)^  the  Court  decided  that  the  word 
"  bank "  gave  a  boundary  to  high  water  mark.  The 
contrary  decision  in  the  later  case  really  rested  upon  the 
argument  from  long  possession. 

The  case  of  North  Carolina  v.  Tennessee  (1914)^  was 
a  dispute  concerning  one  of  the  very  few  boundaries  in 
the  United  States  which  follow  watershed  lines,  but  its 
details  are  of  little  interest  to  any  except  surveyors.  The 
controversy  dated  from  Revolutionary  times,  and  a  com- 
promise between  the  two  States  in  1821  had  fixed  the  line 
in  the  manner  now  claimed  by  North  Carolina.  Ten- 
nessee had  never  disputed  this  line  until  1882,  and  the 
present  suit  arose  out  of  her  attempt  to  grant  part  of  the 
land  in  question  in  1892.  The  decision  of  the  Court,  as 
might  be  expected,  was  in  favour  of  ratifying  the  com- 
promise line  of  1 82 1,  and  commissioners  were  appointed 
to  mark  it  in  a  permanent  manner.  The  report  of  the 
commissioners  was  confirmed  in  19 16.* 

The  vagaries  of  the  Mississippi  River  were  responsible 
for  the  case  of  Arkansas  v.  Tennessee,  which  came  before 
the  Supreme  Court  in  1918.^  What  happened  is  thus 
described  by  the  Court : 

"  On  March  7,  1876,  the  river  suddenly  and  with 
great  violence,  within  about  thirty  hours,  made  for 
itself  a  new  channel  directly  across  the  neck  opposite 

1217  U.  S.,  585.         3  235  u.  S.,  I.  5  246  U.  S.,  158. 

2  Ante,  p.  37.  *  240  U.  S.,  652. 


56  -         AMERICAN  SUPREME  COURT 

the  apex  of  Dean's  Island,  so  that  the  old  channel 
round  the  bend  of  the  elbow  (a  distance  of  fifteen  to 
twenty  miles)  was  abandoned  by  the  current,  and 
although  it  remained  for  a  few  years  covered  with 
dead  water  it  was  no  longer  navigable  except  in 
times  of  high  water  for  small  boats,  and  this  con- 
tinued only  for  a  short  time,  since  the  old  bed  im- 
mediately began  to  fill  with  sand,  sediment,  and  al- 
luvial deposits.  In  the  course  of  time  it  became  dry 
land  suitable  for  cultivation  and  to  a  considerable 
extent  covered  with  timber."  ^ 


As  we  have  already  seen,  the  treaty  of  1763,  which  gov- 
erns all  the  later  documents,  made  "  the  middle  of  the 
River  Mississippi  *'  the  boundary  between  the  British  and 
the  French  possessions.  That  being  so,  it  would  appear 
that  the  case  was  clearly  one  of  "  avulsion,"  but  counsel 
for  Tennessee  attempted  to  avoid  a  decision  on  this 
ground  by  putting  forward  a  theory  which  they  called 
the  "  doctrine  of  submergence  and  reappearance."  Their 
claim  was  that  during  some  fifty  years  the  river  had  by 
gradual  erosion  been  eating  up  Tennessee  territory, 
which  was  only  restored  by  the  sudden  diversion  of  the 
stream  in  1876.  This  doctrine  was  to  be  found  in  old 
law  books  with  reference  to  cases  where  the  sea  had 
engulfed  a  man*s  land  and  subsequently  receded,  leaving 
it  bare.^  But  the  Court  declined  to  extend  the  principle 
to  the  gradual  erosion  caused  by  a  stream,  and  the  title 
of  Arkansas  to  the  land  in  question  was  accordingly  held 
to  be  unaffected  by  the  "  avulsion  "  of  1876. 

With  the  case  of  Arkansas  v.  Tennessee  we  come  to  the 
last  of  the  boundary  disputes  that  have  up  to  the  time  of 
writing  been  brought  for  decision  to  the  Supreme  Court. 
Considering  them  as  a  whole  the  most  noticeable  feature 

1246  U.  S.,  162. 

2  It  has   also  been   applied  in   Indian   cases,  where  a   river  re- 
turns to  its  proper  bed  and  thus  restores  submerged  land. 


BOUNDARY  CASES  57 

of  the  series  is  the  importance  which  the  Court  always 
attaches  to  the  doctrine  that,  as  the  common  phrase  goes, 
"  possession  is  nine  points  of  the  law."  No  fixed  period 
of  prescription  has  been  laid  down,  but  in  every  case 
where  there  has  been  uninterrupted  possession  for  any 
considerable  time  the  judgment  of  the  Court  has  been 
given  in  favour  of  the  possessor. 

In  the  second  place  it  is  to  be  observed  that  the  Court^ 
treats  every  question  of  boundary  as  a  question  of  legal 
title  pure  and  simple.  It  does  not  feel  that  it  is  entitled 
to  consider  what  may  be  called  the  diplomatic  or  political 
aspects  of  any  controversy.  Nor  under  the  American 
Constitution  would  any  other  than  the  strictly  legal 
method  be  possible.  All  boundaries  in  the  United  States 
depend  upon  legal  documents  of  some  kind,  either  Eng- 
lish charters,  or  treaties  with  foreign  powers,  or  Acts  of 
Congress  and  the  State  Legislatures.  Furthermore  the 
States  are  forbidden  to  employ  among  themselves  either 
war  or  diplomacy  or  economic  coercion,  so  no  questions 
of  strategic  or  economic  frontiers  can  possibly  arise.  The 
Constitution  contains  no  provisions  for  settling  boun- 
daries in  accordance  with  the  wishes  of  the  people  im- 
mediately affected,  but  it  does  provide  (Art.  IV,  Sec.  3) 
that  no  State  shall  be  deprived  of  any  territory  whatso- 
ever without  its  own  consent.  The  Court  therefore,  in 
determining  boundary  questions,  is  guided  in  the  first  in- 
stance by  the  written  Constitution,  and  secondly  by  the 
treaties  and  other  legal  acts  applicable  to  the  particular 
case.  If  these  are  not  sufficiently  explicit  to  conclude  the 
matter,  recourse  is  had  to  the  principles  of  the  English 
Common  Law  or  to  any  rules  that  find  general  acceptance 
among  the  leading  writers  on  international  law.  The  fact 
that  the  English  Common  Law  is  the  foundation  of 
American  jurisprudence  has  supplied  the  Court  with  a 
coherent  body  of  doctrine  which  enables  it  to  render  a 


58  AMERICAN  SUPREME  COURT 

series  of  judgments  resting  upon  a  uniform  basis  of 
principle/ 

These  circumstances  must  be  carefully  borne  in  mind 
when  it  is  desired  to  create  a  Court  of  the  Nations  with 
functions  in  any  way  resembling  those  of  the  Supreme 
Court  of  the  United  States.  If  we  are  to  establish  any 
kind  of  permanent  tribunal,  as  distinguished  from  occa- 
sional arbitration  commissions,  we  must  provide  it,  in  out- 
line at  least,  with  a  consistent  body  of  rules  upon  which 
to  work.  Nations  can  hardly  be  expected  to  commit  their 
destinies  to  the  arbitrament  of  a  small  group  of  men  who 
are  guided  by  nothing  better  than  their  own  discretion.^ 

But  the  real  difficulty  will  arise  when  the  Court  is 
called  upon  to  solve  boundary  questions  which  have  their 
root  in  deep-seated  political  conflicts.  It  is  comparatively 
easy  to  decide  a  dispute  which  turns  upon  the  construction 
of  a  document  or  the  legal  effect  of  deviations  in  the 
course  of  a  river.  But  it  is  manifest  that  the  rules  laid 
down  in  such  cases  do  not  help  us  to  determine,  for 
example,  where  the  boundaries  shall  be  drawn  between 
Italy  and  Serbia  on  the  Adriatic  coast.  All  courts  pre- 
suppose laws,  or  at  least  some  commonly  accepted  notions 
of  justice,  and  if  these  grave  political  controversies  are 
to  be  brought  within  the  range  of  judicial  settlement,  it 
is  necessary  that  we  should  agree  beforehand  upon  some 
leading  principles  by  which  they  are  to  be  decided.  It  is 
clear  that  the  doctrine  of  long  possession  so  strongly 
favoured  by  the  Supreme  Court  will  not  be  of  itself  suf- 
ficient. In  this  present  year,  19 19,  the  civilised  world  is 
busily  engaged  in  breaking  up  arrangements  which  have 
centuries  of  established  title  to  support  them.     The  fact 

1  This  has  been  repeatedly  pointed  out  by  the  Court  itself : 
"  The  language  of  the  Constitution,  as  has  been  well  said,  could 
not  be  understood  without  reference  to  the  Common  Law." — 
United  States  v.  IVong  Kim  Ark  (169  U.  S.,  654),  per  Mr.  Jus- 
tice Gray. 

2  Upon  this  point  see  also  Chapter  VII. 


BOUNDARY  CASES  59 

that  an  injustice  has  lasted  a  long  time  is  an  insufficient 
reason  for  deciding  that  it  must  continue  for  ever. 

It  is  not  within  the  province  of  this  essay  to  lay  down 
rules  for  the  settlement  of  such  questions.  Present  indi- 
cations point  to  the  adoption  in  some  form  or  other  of 
the  doctrine  of  the  plebiscite,  though  this  too  has  its  diffi- 
culties, especially  in  deaHng  with  mixed  populations  and 
undeveloped  races.  But  it  is  essential  to  understand  that 
unless  some  common  principles  of  decision  are  agreed 
upon  by  the  civilised  world  these  grave  political  contro- 
versies cannot  be  judicially  settled  at  all. 


CHAPTER  IV 
THE  RECOVERY  OF  STATE  DEBTS 

When  in  1793  the  Supreme  Court  decided  in  Chis- 
holm  V.  Georgia  ^  that  a  State  could  be  sued  by  a  citizen 
of  another  State  for  the  recovery  of  a  debt  due  to  him  a 
wave  of  indignation  swept  through  the  Union  at  the  af- 
front thus  offered  to  the  dignity  of  a  "  sovereign  "  power. 
Georgia  utterly  refused  to  comply  with  the  judgment,  and 
the  Eleventh  Amendment  was  passed  to  prevent  a  repeti- 
tion of  the  outrage.  To  those  States  which  took  a  low 
view  of  their  moral  obligations  the  Amendment  proved 
a  charter  of  liberty,  and  several  were  accordingly  relieved 
of  considerable  financial  embarrassment.  Various  at- 
tempts to  circumvent  the  Amendment  were  defeated  by 
the  Supreme  Court,  which  refused  to  allow  a  State  to  be 
sued  except  in  cases  where  the  creditor  had  unreservedly 
assigned  his  interest  to  another  State.^ 

It  follows  that  a  State  can  only  be  sued  by  another 
State,  or  by  the  United  States,  or  by  a  foreign  State. 
For  various  reasons  inter-State  suits  arising  out  of  money 
matters  are  not  common.  In  the  first  place,  the  Constitu- 
tion (Art.  I,  Sec.  10)  forbids  the  States  to  enter  into 
binding  agreements  with  one  another  without  the  consent 
of  Congress.  Secondly,  experience  has  taught  the  people 
to  look  with  great  suspicion  upon  the  readiness  of  their 
legislatures  to  incur  indebtedness,  and  most  of  the  State 
Constitutions  now  contain  stringent  restrictions  upon  the 

1 2  Dallas,  419.    See  p.  9,  ante. 
2  See  p.  9,  ante. 

60 


THE  RECOVERY  OF  STATE  DEBTS   6i 

power  of  the  legislature  to  pledge  the  credit  of  the  State. 
Not  only  are  the  purposes  for  which  debt  may  be  incurred 
very  strictly  defined,  but  the  Constitution  usually  requires 
that  the  borrowing  act  shall  provide  for  a  sinking  fund  to 
pay  off  the  debt  in  a  few  years.^ 

A  few  cases,  however,  have  arisen  in  which  actions  for 
debt  have  been  maintained  against  a  State.  In  United 
States  V.  North  Carolina  (1890)  ^  the  Federal  Govern- 
ment sued  for  the  interest  due  upon  147  thousand-dollar 
bonds  of  the  State  after  the  bonds  had  become  payable. 
The  State  had  belatedly  paid  up  the  principal  sum  due, 
together  with  interest  to  the  date  of  maturity,  so  the  only 
question  remaining  was  whether  interest  could  be  claimed 
for  the  period  between  maturity  and  actual  payment.  As 
a  matter  of  law  between  private  individuals  there  could 
be  no  doubt  upon  the  matter.  If  a  man  will  not  pay  his 
debts  when  they  are  due,  he  must  be  prepared  to  pay 
interest  for  such  time  as  he  chooses  to  remain  in  arrear. 
The  Court,  however,  held  that  where  a  State  was  the 
debtor  the  ordinary  doctrine  did  not  apply.  Mr.  Justice 
Gray,  speaking  for  a  majority  of  the  Court,  considered 
that  the  dignity  of  a  sovereign  power  was  involved : 

"  Interest,  when  not  stipulated  for  by  contract  or 
authorised  by  statute,  is  allowed  by  the  Courts  as 
damages  for  the  detention  of  money  or  of  property, 
or  as  compensation,  to  which  the  defendant  is  en- 
titled; and,  as  has  been  settled  on  grounds  of  public 
convenience,  is  not  to  be  awarded  against  a  sover- 
eign government,  unless  its  consent  to  pay  interest 
has  been  manifested  by  an  act  of  its  legislature,  or 
by  a  lawful  contract  of  its  executive  officers."  * 

^The  English  reader  will  find  a  characteristic  example  of  these 
provisions  in  the  Constitution  of  Oklahoma,  which  is  printed  in 
Bryce's  American  Commonzvealth,  vol.  i,  pp.  735-6. 

2  136  U.  S.,  211. 

8  136  U.  S.,  216. 


62  AMERICAN  SUPREME  COURT 

The  bonds  in  question  were  made  payable  in  New  York, 
and  by  the  law  of  that  State  interest  is  payable  on  bonds 
after  maturity.  North  Carolina  had,  however,  made  no 
such  provision,  and  the  Court  held  that  the  case  was  to 
be  governed  by  her  laws : 

"  Contracts  are  to  be  governed,  as  to  their  nature, 
their  validity,  and  their  interpretation,  by  the  law  of 
the  place  where  they  are  made,  unless  the  contracting^ 
parties  appear  to  have  had   some   other  place   in 


Judgment  was  accordingly  given  against  the  claim  of  the 
United  States. 

United  States  v.  Michigan  (1903)  ^  was  a  case  where 
the  United  States  claimed  to  be  repaid  the  balance  of 
certain  moneys  advanced  to  the  State  for  the  building  of 
the  St.  Mary's  River  Canal  at  the  lower  end  of  Lake 
Superior.  The  Federal  Government  had  granted  to  the 
State  750,000  acres  of  land,  which  were  to  be  sold  to 
provide  a  building  fund.  Out  of  this  fund  the  canal  was 
built,  without  any  expense  to  Michigan,  and  the  costs  of 
operation  were  met  by  the  levy  of  tolls.  When  the  work 
was  completed  a  considerable  sum  remained  over,  and 
this  surplus  Michigan  proposed  to  retain  for  her  own  use. 
The  United  States  contended  that  the  whole  fund  was 
impressed  with  a  trust  for  the  specific  purpose  of  building 
the  canal,  and  that  the  State  was  therefore  bound  to  repay 
the  surplus  remaining  after  the  canal  had  been  built.  The 
decision  of  the  case  necessarily  turned  upon  the  wording 
and  intention  of  the  relevant  statutes.  For  our  purpose 
it  is  sufficient  to  summarise  the  result  in  the  words  of 
Mr.  Justice  Peckham : 

"  That  the  parties  supposed  the  cost  would  be 
borne  by  the  United  States  is  proved  by  an  examina- 
1  Ibid.,  222.  2  190  U.  S.,  379. 


THE  RECOVERY  OF  STATE  DEBTS       63 

tion  of  the  statutes,  and  if  it  be  a  fact,  it  goes  far  to 
show  that  the  State  was  in  this  matter  acting  in 
eflFect  and  substance  as  an  agent,  or,  in  other  words, 
as  a  trustee  for  the  United  States,  and  that  the 
transaction  was  not  to  be  a  source  of  profit  to  the 
State,  by  reason  of  getting  more  from  the  United 
States  than  it  would  cost  to  build  the  canal."  ^ 

The  principle  underlying  the  decision  was  thus  defined : 

"  Where  words  are  ambiguous,  legislative  grants 
must  be  interpreted  most  strongly  against  the 
grantee  and  for  the  Government,  and  are  not  to  be 
extended  by  implication  in  favour  of  the  grantee  be- 
yond the  natural  and  obvious  meaning  of  the  words 
employed.  Any  ambiguity  must  operate  against  the 
grantee  and  in  favour  of  the  public."  ^ 

The  facts  in  the  case  of  South  Dakota  v.  North  Caro- 
lina ( 1904)  ^  have  already  been  briefly  noticed.  The  case 
has  two  points  of  interest,  neither  of  which  belongs  prop- 
erly to  the  present  chapter.  In  the  first  place  it  was 
claimed  that  the  jurisdiction  of  the  Court  was  ousted  by 
the  Eleventh  Amendment,  and  this  point,  as  we  have  seen, 
was  decided  in  favour  of  the  plaintiff.  The  other  ques- 
tion which  the  Court  had  to  consider  was  by  what  means 
it  could  make  its  judgment  effective.  To  this  we  shall 
return  later.  Upon  the  merits  of  the  controversy  North 
Carolina  had  no  defence.  Payment  of  both  principal  and 
interest  upon  the  bonds  was  long  overdue,  and  the  debt 
had  in  effect  been  repudiated  by  the  State.  The  question 
of  jurisdiction  having  been  decided  in  favour  of  the  plain- 
tiff, judgment  for  the  sum  due  necessarily  followed. 

It  has  already  been  mentioned  that  in  1855  Congress 
established  a  ''  Court  of  Claims  "  for  the  judicial  settle- 
ment of  contractual  and  similar  claims  against  the  Fed- 
eral authorities.    Prior  to  this  Act  the  only  remedy  of  an 

1 190  U.  S.,  397.  '  Ibid.,  401. 

3  192  U.  S.,  286.    See  p.  21,  ante,  and  p.  98,  post. 


64  AMERICAN  SUPREME  COURT 

aggrieved  citizen  was  by  the  clumsy  and  unsatisfactory 
method  of  a  petition  to  Congress  for  redress  of  his  griev- 
ances. In  1887  the  Supreme  Court  held  in  United  States 
V.  Louisiana^  that  the  States  might  avail  themselves  of 
this  tribunal,  with  a  right  of  appeal  by  either  party  to  the 
Supreme  Court.  It  will  be  convenient  to  group  together 
here  the  few  cases  in  which  States  have  availed  them- 
selves of  this  right. 

The  facts  of  United  States  v.  Louisiana,  which  reached 
a  final  decision  in  1888,^  are  in  themselves  of  little  in- 
terest. The  claim  of  the  State  was  for  sums  due  to  her 
under  certain  Acts  of  Congress,  which  had  allocated  part 
of  the  proceeds  of  the  sale  of  Federal  lands  to  be  applied 
for  the  carrying  out  of  public  improvements  within  the 
State  territory.  This  liability  was  admitted  by  the  United 
States,  but  it  was  claimed  to  set  off  against  the  amount  of 
this  debt  certain  unpaid  taxes  due  from  citizens  of 
Louisiana  to  the  Federal  Treasury.  The  taxes,  however, 
were  due  from  the  citizens  individually,  and  not  from  the 
State  as  such.  The  Court  therefore  held  that  these  sums 
could  not  be  set  off  against  the  money  due  from  the 
United  States  to  Louisiana. 

More  successful  was  the  claim  of  the  United  States  to 
set  off  the  amounts  due  upon  certain  State  bonds.  The 
Federal  Government  held  a  large  number  of  Louisiana 
bonds,  upon  which  the  interest  had  not  been  paid.  Since 
this  was  a  liability  of  the  State  itself,  as  distinguished 
from  its  citizens,  the  Court  held  that  it  must  be  set  off 
against  the  debt  due  to  Louisiana  from  the  United  States. 

In  1893  ^  similar  claim  was  brought  by  the  State  of 
Indiana,^  based  upon  certain  Acts  of  Congress  which 

1 123  U.  S.,  32. 

2  127  U.  S.,  182.  The  name  of  the  United  States  appears  first  in 
the  title,  since  the  Federal  Government  was  appealing  from  the 
decision  of  the  Court  of  Claims. 

8  148  U.  S.,  148. 


THE  RECOVERY  OF  STATE  DEBTS   65 

directed  the  sales  of  public  lands  to  be  applied  in  the  con- 
struction of  national  roads  through  Indiana  and  other 
States.  The  case  requires  only  the  briefest  notice,  for 
the  Court  found  that  the  cost  of  constructing  the  roads  in 
Indiana  greatly  exceeded  the  sums  arising  out  of  the  sale 
of  lands.    The  claim  of  the  State  subsequently  failed. 

The  case  of  United  States  v.  New  York  (1896)  ^  may 
be  compared  with  the  case  of  United  States  v.  North 
Carolina,  already  noticed.  The  claim  of  the  State  was 
based  upon  an  Act  of  Congress  of  1861,  which  directed 
the  Treasury  to  reimburse  the  States  the  expenses  they 
might  incur  in  raising  contingents  for  the  Union  armies 
in  the  Civil  War.  New  York  had  raised  the  money  by 
borrowing,  and  the  main  question  in  the  case  was 
whether  she  was  entitled  to  be  repaid  the  interest  on  the 
sums  borrowed  as  part  of  her  '*  costs,  charges,  and  ex- 
penses properly  incurred  '*  under  the  Act  of  1861.  The 
Court  distinguished  the  North  Carolina  case,  and  upheld 
the  claim  of  the  State. 

"  It  could  not  have  borrowed  money/'  said  Mr. 
Justice  Harlan,  "  any  more  than  the  General  Govern- 
ment could  have  borrowed  money,  without  stipulat- 
ing to  pay  such  interest  as  was  customary  in  the 
commercial  world.  Congress  did  not  expect  that  any 
State  would  decline  to  borrow  and  await  the  collec- 
tion of  money  raised  by  taxation  before  it  moved  to 
the  support  of  the  nation."  ^ 

South  Carolina  v.  United  States  (1905)  ^  is  a  some- 
what peculiar  case.  By  various  statutes  the  State  took 
over  the  whole  business  of  the  sale  of  liquor  within  its 
borders,  and  prohibited  the  sale  of  liquor  except  by  "  dis- 
pensers," who  were  State  officials  without  any  financial 
interest  in  the  profits  of  the  business.  But  the  United 
States  also  was  interested  in  regulating  the  trade  for 

1 160  U.  S.,  598.        - 160  U.  S.,  621.  3  199  u.  S.,  437. 

P.  4345  E 


66  AMERICAN  SUPREME  COURT 

revenue  purposes,  and  Federal  statutes  imposed  a  licence 
tax  upon  all  retail  dealers  in  wine  or  spirits.  For  some 
years  the  State  paid  the  Federal  tax  for  its  dispensers, 
but  in  1 90 1  a  protest  was  entered,  and  this  developed  into 
a  suit  in  the  Court  of  Claims  for  the  return  of  the  sums 
paid. 

The  question  was  of  some  importance.  Under  the 
American  Constitution  the  powers  both  of  the  National 
and  of  the  State  Governments  are  sharply  marked  out, 
and  the  Supreme  Court  had  long  ago  held  that  neither  of 
these  could,  under  colour  of  taxation,  be  permitted  to 
interfere  with  the  legitimate  activities  of  the  other.  Thus 
in  McCulloch  v.  Maryland  (18 19)  ^  the  Court  had  dis- 
allowed the  attempt  of  a  State  to  tax  the  operations  of  a 
national  bank,  and  in  The  Collector  v.  Day  (1870)  ^  it 
had  ruled  that  Congress  could  not  tax  the  salary  of  a 
State  judge.  The  present  case,  however,  appeared  to  the 
Court  to  rest  upon  a  different  principle.  Admitting  that 
Congress  could  not  lawfully  tax  the  governmental  activi- 
tives  of  a  State,  the  Court  nevertheless  held  that  in  as- 
suming a  monopoly  of  the  liquor  trade  South  Carolina 
had  so  far  discarded  her  political  character  and  had  ac- 
cepted the  status  of  an  ordinary  trader.  The  Constitu- 
tion, in  the  opinion  of  the  Court,  must  be  adapted  to  meet 
conditions  that  could  never  have  been  present  to  the  minds 
of  its  framers.  Otherwise  the  growing  tendency  of 
States  to  engage  in  business  activities  might  result  in 
rendering  ineffective  the  greater  part  of  Federal  taxation. 
A  majority  of  the  Court  accordingly  held  that  the  State 
dispensers  were  liable  to  the  tax.  Three  judges  dissented 
from  this  decision  on  the  ground  that 

"  By  the  ruling  and  the  reasoning  sustaining  it  the 
ancient  landmarks  are  obliterated  and  the  distinct 
powers  belonging  to  both  the  National  and  State 
14  Wheaton,  316.  2  „  Wallace,  113. 


THE  RECOVERY  OF  STATE  DEBTS       67 

Governments  are  reciprocally  placed  the  one  at  the 
mercy  of  the  other,  so  as  to  give  to  each  the  potency 
of  destroying  the  other."  ^ 

The  most  important  of  all  the  State  debt  cases  is  that 
of  Virginia  v.  West  Virginia,  which  was  entered  in  the 
Supreme  Court  in  1906,^  and  has  been  reappearing  at 
frequent  intervals  up  to  19 18.  It  has  its  roots  in  the 
great  conflict  of  the  Civil  War,  and  until  lately  threatened 
to  confront  the  Supreme  Court  with  the  problem,  so  long 
evaded,  of  how  a  final  judgment  is  to  be  enforced. 

The  circumstances  leading  up  to  the  formation  of  West 
Virginia  have  already  been  briefly  noticed,  and  we  have 
seen  how  in  the  first  lawsuit  between  the  two  States  the 
political  ownership  of  two  disputed  counties  was  ad- 
judged to  West  Virginia.  The  present  claim  of  Virginia 
arose  out  of  the  fact  that  her  assent  to  the  formation  of 
the  new  State  was  obtained  only  upon  the  distinct  under- 
taking of  the  latter  to  shoulder  a  fair  share  of  Virginia's 
pre-war  debt.  The  terms  of  the  undertaking  were  thus 
expressed  in  the  ninth  ordinance  of  the  Wheeling  Con- 
vention of  186 1 : 

"  The  new  State  shall  take  upon  itself  a  just  pro- 
portion of  the  public  debt  of  the  Commonwealth  of 
Virginia,  prior  to  the  first  day  of  Januaiy,  1861,  to 
be  ascertained  by  charging  to  it  all  State  expendi- 
tures within  the  limits  thereof,  and  a  just  proportion 
of  the  ordinary  expenses  of  the  State  government, 
since  any  part  of  said  debt  was  contracted;  and  de- 
ducting therefrom  the  monies  paid  into  the  treasury 
of  the  Commonwealth  from  the  counties  included 
within  the  said  new  State  during  the  same  period." 

The  obligation  thus  undertaken  was  reaffirmed  in  the 
eighth  article  of  the  West  Virginian  Constitution : 

»i99  U.  S.,  464.  2  206  U.  S.,  290. 


68  AMERICAN  SUPREME  COURT 

"  An  equitable  proportion  of  the  public  debt  of  the 
Commonwealth  of  Virginia,  prior  to  the  first  day  of 
January,  in  the  year  one  thousand  eight  hundred  and 
sixty-one,  shall  be  assumed  by  this  State;  and  the 
legislature  shall  ascertain  the  same  as  soon  as  may 
be  practicable,  and  provide  for  the  liquidation  there- 
of, by  a  sinking  fund  sufficient  to  pay  the  accruing 
interest,  and  redeem  the  principal  within  thirty-four 
years." 

For  more  than  forty  years  Virginia  did  all  in  her  power 
by  friendly  negotiation  to  induce  the  younger  State  to 
settle  the  obligation  thus  solemnly  contracted.^  All  these 
efforts  proved  unavailing,  and  in  1906  Virginia  took  the 
matter  to  the  Supreme  Court.  In  the  next  year  the  case 
was  argued  upon  the  question  of  jurisdiction,  and  the 
demurrer  of  West  Virginia  to  the  jurisdiction  was,  as 
we  have  already  seen,  overruled.  In  1908  the  Court  ap- 
pointed a  master  to  settle  the  form  of  the  account,^  giv- 
ing him' wide  powers  to  compel  the  production  of  all 
necessary  evidence.  The  report  of  the  master  came  be- 
fore the  Court  in  1911,^  and  was  strenuously  resisted  by 
counsel  for  West  Virginia,  but  their  objections  did  not 
prevail.  The  Court  refused  at  this  stage  to  proceed  to  a 
final  decree,  contenting  itself  with  laying  down  some 
guiding  principles  for  the  valuation  of  the  debt,  to  be 
worked  out  in  detail,  if  need  be,  by  the  master.  But  a 
strong  hope  was  expressed  that  the  parties  might  reach 
an  agreement  which  would  render  further  litigation 
needless. 

"  This  case,"  said  Mr.  Justice  Holmes,  "  is  one 
that  calls  for  forbearance  upon  both  sides.  Great 
States  have  a  temper  superior  to  that  of  private 

*  See  the  remarks  of  the  Court  upon  this  point,  p.  27,  ante. 
2209  U.  S.,  514. 
3  220   U.    S.,    I. 


THE  RECOVERY  OF  STATE  DEBTS       69 

litigants,  and  it  is  to  be  hoped  that  enough  has  been 
decided  for  patriotism,  the  fraternity  of  the  Union, 
and  mutual  consideration  to  bring  it  to  an  end."  ^ 

The  hopes  of  the  Court  were  destined  to  disappoint- 
ment. Virginia  at  once  attempted  to  arrange  a  confer- 
ence with  the  West  Virginian  authorities,  but  the  Gov- 
ernor of  West  Virginia  failed  to  respond.  Accordingly, 
in  October,  191 1,  Virginia  again  appeared  before  the 
Supreme  Court  with  a  motion  praying  for  a  speedy  hear- 
ing and  determination  of  the  case.  The  Court,  always 
very  tender  in  its  dealings  with  States,  refused  to  hustle 
West  Virginia. 

"  A  State,"  said  Mr.  Justice  Holmes,  "  cannot  be 
expected  to  move  with  the  celerity  of  a  private  busi- 
ness man;  it  is  enough  if  it  proceeds,  in  the  language 
of  the  English  Chancery,  with  all  deliberate  speed."  ^ 

So  the  case  was  left  to  await  the  meeting  of  the  legis- 
lature of  West  Virginia  in  ordinary  session  in  January, 
19 1 3.  When  the  legislature  met,  it  did  at  last  appoint  a 
commission  to  deal  with  the  question,  but  in  the  course  of 
a  few  months  Virginia  decided  that  even  this  new  move 
gave  little  promise  of  a  settlement.  In  October,  there- 
fore, she  again  moved  the  Supreme  Court  for  a  speedy 
decision.^  West  Virginia  thereupon  asked  for  six 
months  more  time,  which  would  have  meant  carrying  the 
case  over  to  the  next  term,  and  really  delaying  the  de- 
cision by  another  year;  the  Court  accordingly  told  her 
that  she  must  be  ready  with  her  answer  in  five  months 
time. 

When  the  five  months  had  passed  West  Virginia  asked 
for  yet  another  postponement  to  enable  her  to  file  a  "  sup- 
plemental   answer."  *     With    a   tolerance    which    would 

1220  U.  S.,  36.  3231  u.  S.,  89. 

^222  U,  S.,  19-20.  *234  U.  S.,  117. 


70  AMERICAN  SUPREME  COURT 

never  have  been  extended  to  an  ordinary  litigant  ^  the 
Court  granted  this  request,  and  the  case  was  referred 
back  to  the  master  with  directions  to  have  his  report 
ready  by  October,  19 14.  In  the  next  year,  all  methods 
of  delaying  the  decision  being  now  exhausted,  the  case  at 
last  came  on  for  final  hearing  on  the  questions  raised  by 
the  master's  report.^ 

The  Court  had  already  held  in  191 1  that  West  Vir- 
ginia was  bound  by  contract  to  pay  whatever  should  turn 
out  to  be  the  correct  sum,  and  the  present  proceedings 
therefore  resolved  themselves  into  an  argument  upon  the 
correctness  of  the  items  set  forth  in  the  report.  One  or 
two  points  decided  are  of  general  interest.  West  Vir- 
ginia claimed  that  certain  heavily  depreciated  stock  held 
by  Virginia  should  be  valued  at  the  sum  originally  paid 
for  it.  The  Court,  however,  decided  that  it  must  be  as- 
sessed according  to  its  actual  value  on  the  ist  January, 
1 86 1.  In  favour  of  West  Virginia  it  was  held  that  she 
was  entitled  to  a  proportionate  share  of  the  benefit  of  an 
arrangement  which  Virginia  had  made  with  her  creditors. 

A  more  important  point  was  whether  West  Virginia 
should  be  charged  with  interest  for  the  long  period  dur- 
ing which  the  debt  had  remained  unpaid.  The  Court,  it 
will  be  remembered,  had  already  held  that  a  State  cannot 
be  charged  with  interest  except  by  its  own  consent.  That 
being  so,  the  question  became  one  of  the  interpretation 
of  the  contract  between  the  two  States.  Although  the 
agreement  in  this  case  contained  no  express  provisions 
relating  to  interest,  the  Court  held  that  upon  its  "  fair 
intendment "  the  payment  of  interest  was  contemplated. 

"  There  is  no  escape  from  the  conclusion,"  said 
Mr.  Justice  Hughes,  "  that  there  was  a  contract  duty 
on  the  part  of  West  Virginia  to  provide  for  accruing 

1  For  the  remarks  of  the  Court  upon  this  point,  see  p.  108,  post. 

2  238  U.  S.,  202. 


THE  RECOVERY  OF  STATE  DEBTS   71 

interest  as  a  part  of  the  equitable  proportion  as- 
sumed, and  that  it  would  be  highly  inequitable  as 
between  the  two  States  that  Virginia  as  to  her  share 
should  bear  interest  charges  for  these  fifty  years 
while  West  Virginia  on  her  part  should  simply  pay 
a  percentage  of  principal  reduced  by  the  credits 
which  have  been  allowed."  ^ 

Various  other  questions  of  accounting  having  been  simi- 
larly cleared  up  the  Court  finally  assessed  the  indebted- 
ness of  West  Virginia  at  the  sum  of  $12,393,929.50. 
The  decree  further  provided  that  this  sum  should  bear 
interest  at  the  rate  of  five  per  cent,  until  it  was  paid. 
The  costs  were  to  be  equally  divided  between  the  two 
States." 

This  decree  was  pronounced  on  the  14th  June,  191 5, 
and  the  subsequent  proceedings  in  the  case  belong  more 
properly  to  another  chapter.  The  whole  case  leaves  a 
somewhat  unpleasant  impression  on  the  mind  of  an  out- 
side observer.  Nothing  could  be  more  solemn  than  the 
agreement  by  which  West  Virginia  expressly  undertook, 
as  a  condition  of  her  independence,  to  bear  a  fair  share 
of  the  pre-war  debt  of  the  parent  State,  and  promised 
that  her  legislature  should  ascertain  the  exact  amount 
"  as  soon  as  may  be  practicable."  Yet  for  forty-three 
years  she  took  no  steps  whatever  to  discharge  this  solemn 
obligation.  When  the  matter  was  brought  into  the 
Supreme  Court  West  Virginia  first  of  all  denied  the 
jurisdiction  of  the  tribunal,  and  then  interposed  every 
dilatory  motion  that  the  ingenuity  of  her  counsel  could 
suggest  to  postpone  a  decision  of  the  case  upon  the  merits. 
The  attempts  of  Virginia  to  settle  the  matter  in  an  ami- 
cable conference  met  with  no  real  response,  in  spite  of  the 
fact  that  this  course  was  suggested  on  the  authority  of 
the  Court  itself.     Finally,  she  has  allowed  nearly  four 

1238  U.  S.,  236.  2238  U.  S.,  242. 


72  AMERICAN  SUPREME  COURT 

years  to  elapse  since  the  pronouncement  of  the  decree  be- 
fore taking  any  steps  to  render  it  obedience.  In  the  case 
of  a  private  individual  or  a  commercial  company  such 
conduct  would  doubtless  call  down  a  rebuke  which  the 
Court  is  unwilling  to  administer  to  a  State  of  the  Union. 


CHAPTER  V 
CASES  OF  INJURY  BY  STATE  ACTION 

There  remain  to  be  considered  five  cases  in  which  the 
political  action  of  an  American  State  has  been  challenged 
in  the  Supreme  Court  as  an  injury  to  the  rights  of  its 
neighbours. 

The  first  of  these  cases  is  that  of  Cherokee  Nation  v. 
Georgia  (1831)/  which  would  have  raised  questions  of 
the  highest  interest  and  importance  had  not  the  Court,  by 
denying  the  jurisdiction,  prevented  an  inquiry  into  the 
merits  of  the  Indian  complaint.  This  decision  rested  on 
the  rather  narrowly  technical  ground  that  the  Indian 
tribes  were  not  "  foreign  States  "  within  the  meaning  of 
the  Constitution,  but  were  rather  what  Marshall  described 
as  "  wards  of  the  United  States."  The  strong  minority 
which  disapproved  of  this  ruling  included  Mr.  Justice 
Story,  a  jurist  whose  fame  is  second  only  to  that  of 
Marshall  in  the  annals  of  American  jurisprudence,  and 
if  the  question  had  arisen  forty  years  later,  when  the 
Court  felt  more  sure  of  its  position,  it  is  probable  that 
the  jurisdiction  would  have  been  entertained.  That  the 
sympathies  of  the  whole  Court  were  strongly  with  the 
Indians  is  clear  from  Marshall's  words : 

"  This  bill  is  brought  by  the  Cherokee  nation, 
praying  an  injunction  to  restrain  the  State  of 
Georgia  from  the  execution  of  certain  laws  of  that 
State,  which,  as  is  alleged,  go  directly  to  annihilate 

15  Peters,  i. 

73 


74  AMERICAN  SUPREME  COURT 

the  Cherokees,  as  a  political  society,  and  to  seize,  for 
the  use  of  Georgia,  the  lands  of  the  nation  which 
have  been  assured  to  them  by  the  United  States,  in 
solemn  treaties  repeatedly  made  and  still  in  force. 

"  If  courts  were  permitted  to  indulge  their  sym- 
pathies, a  case  better  calculated  to  excite  them  can 
scarcely  be  imagined.  A  people,  once  numerous, 
powerful,  and  truly  independent,  found  by  our  an- 
cestors in  the  quiet  and  uncontrolled  possession  of 
an  ample  domain,  gradually  sinking  beneath  our 
superior  policy,  our  arts  and  our  arms,  have  yielded 
their  lands  by  successive  treaties,  each  of  which 
contains  a  solemn  guarantee  of  the  residue,  until 
they  retain  no  more  of  their  formerly  extensive  ter- 
ritory than  is  deemed  necessary  to  their  comfort- 
able subsistence.  To  preserve  the  remnant  the  pres- 
ent application  is  made."  ^ 


Marshall's  words  are  a  very  fair  summary  of  the  treat- 
ment actually  meted  out  to  the  Indians,  and  since  the  case 
went  no  further,  it  is  needless  to  examine  the  complaint 
in  greater  detail.  It  may,  however,  be  doubted  whether 
Georgia  would  in  any  case  have  obeyed  an  adverse  de- 
cision of  the  Supreme  Court  in  such  a  matter.  We  have 
already  seen  how  she  successfully  resisted  the  Chisholm 
judgment,  and  in  another  case  ^  she  refused  to  liberate 
certain  persons  imprisoned  under  a  Georgian  statute 
which  the  Court  held  to  be  unconstitutional.  The  posi- 
tion of  the  Court  in  Marshall's  time  was  by  no  means 
established,  and  the  doctrine  of  "  State  Rights  "  remained 
powerful,  especially  in  the  Southern  States.  Georgia 
acted  on  the  principle  that  she  could  deal  with  the  Indians 
exactly  as  she  pleased,  and  there  is  no  reason  to  think 
that  she  would  have  paid  any  more  respect  to  a  judg- 
ment of  the  Supreme  Court  than  she  was  willing  to  show 


^  5   Peters,   15. 

2  Worcester  v.  Georgia  (1832),  6  Peters,  515. 


CASES  OF  INJURY  BY  STATE  ACTION       75 

for  treaties  that  pledged  the  good  faith  of  the  United 
States. 

Incidentally  it  may  here  be  observed  that  up  to  the 
present  time  no  suit  by  a  foreign  State  against  a  State  of 
the  Union  has  been  prosecuted  to  judgment  in  the 
Supreme  Court.  In  1917  the  Republic  of  Cuba  entered 
a  claim  against  North  Carolina  ^  upon  certain  State  bonds, 
the  circumstances  of  the  case  being  similar  to  those  of 
South  Dakota  v.  North  Carolina,  which  we  have  already 
noticed.  Cuba,  however,  obtained  leave  to  withdraw  the 
suit  before  the  case  came  on  for  a  hearing  on  the  merits. 

In  1876  Georgia  was  again  a  defendant  in  the  Supreme 
Court,  the  plaintiff  in  this  case  being  South  Carolina.^ 
The  dispute  was  one  concerning  the  proper  use  of  the 
Savannah  River,  which  constitutes  the  greater  part  of 
the  boundary  between  the  two  States.  At  the  mouth 
of  the  river,  opposite  to  the  city  of  Savannah  in  Georgia, 
the  stream  divides,  enclosing  a  long  strip  of  land  known 
as  Hutchinson's  Island.  The  northern  or  South  Caro- 
linan  channel  is  known  as  the  Back  River,  and  the  south- 
ern channel,  which  flows  past  the  city  of  Savannah,  is 
called  the  Front  River.  In  1787  an  agreement,  known 
as  the  ''  Treaty  of  Beaufort,"  between  South  Carolina 
and  Georgia  declared  the  navigation  of  the  river  to  be 
"  equally  free  to  the  citizens  of  both  States,  and  exempt 
from  all  duties,  tolls,  hindrance,  interruption,  or  molesta- 
tion whatsoever  attempted  to  be  enforced  by  one  State  on 
the  citizens  of  the  other."  This  agreement  defined  the 
channel  of  free  navigation  as  running  "  up  the  direct 
course  of  the  main  northern  channel,  along  the  northern 
side  of  Hutchinson's  Island,'/  and  everything  south  of  the 
line  so  defined  was  declared  "  to  be  the  exclusive  right  of 
the  State  of  Georgia." 

In  1874  and  1875  Congress  passed  acts  appropriating 

1242  U.  S.,  665.  293  u.  S.,  4. 


76  AMERICAN  SUPREME  COURT 

substantial  sums  *'  for  the  improvement  of  the  harbor  at 
Savannah."  The  improvement  took  the  form  of  divert- 
ing water  by  a  dam  from  the  Back  River  into  the  Front 
River,  with  the  object  of  increasing  the  depth  of  the 
water  at  Savannah  by  fifteen  feet.  To  this  South  Caro- 
lina objected,  taking  her  stand  on  the  agreement  of  1787. 
The  Secretary  of  War  was  joined  with  Georgia  as  a  de- 
fendant to  the  action,  since  Congress  had  entrusted  to 
him  the  execution  of  the  works. 

The  Court  unanimously  held  that  the  agreement  of 
1787  was  no  longer  relevant,  having  been  superseded  by 
the  Constitution  of  the  United  States,  to  which  South 
Carolina  and  Georgia  had  given  their  assent  in  1788. 
Under  the  Constitution  every  State  delegated  some  of  its 
rights  to  the  United  States,  and  the  rights  so  delegated 
included  the  right  "  to  regulate  commerce  with  foreign 
nations,  and  among  the  several  States."  The  power  to 
regulate  commerce,  as  the  Court  observed,  had  been  held 
to  include  the  control  of  navigable  rivers,  and  a  river  may 
in  certain  cases  be  made  more  navigable  by  placing  ob- 
structions therein.  Before  the  adoption  of  the  Constitu- 
tion the  power  to  regulate  commerce  lay  with  the  States, 
and  the  works  now  in  question  could  admittedly  have 
been  carried  out  by  the  joint  authority  of  the  two  riparian 
States.  Since  each  of  them  by  accepting  the  Constitution 
had  surrendered  its  rights  in  the  matter  to  the  Federal 
Government  it  necessarily  followed  that  the  same  works 
could  now  be  carried  out  by  Federal  authority. 

Couth  Carolina  also  relied  upon  the  provision  of  the 
Constitution  (Art.  IX,  Sec.  i)  which  directs  that 

"  no  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over 
those  of  another :  nor  shall  vessels  bound  to,  or  from, 
one  State  be  obliged  to  enter,  clear,  or  pay  duties  in 
another." 


CASES  OF  INJURY  BY  STATE  ACTION       ^^ 

The  Court,  however,  held,  relying  upon  an  earlier  decision 
of  its  own,^  that  this  clause  did  not  prohibit 

"  acts  which  may  directly  benefit  the  ports  of  one 
State,  and  only  incidentally  injuriously  affect  those 
of  another,  such  as  the  improvement  of  rivers  and 
harbours,  the  erection  of  lighthouses,  and  other 
facilities  of  commerce."  ^ 

In  other  words,  provided  that  the  Federal  power  is  exer- 
cised in  good  faith  for  the  good  of  the  community  as  a 
whole,  the  Court  will  not  interfere  merely  on  the  ground 
that  certain  individuals  or  sections  of  the  community  may 
suffer  incidental  loss.  The  legality  of  the  improvements 
was  therefore  affirmed,  and  the  bill  of  South  Carolina 
dismissed. 

We  now  come  to  a  group  of  three  closely  allied  cases, 
to  which  reference  has  already  been  made  in  discussing 
the  question  of  jurisdiction.  The  fundamental  issue  in 
each  one  is  the  right  of  a  State  to  protect  its  citizens,  as 
distinct  from  its  own  corporate  interests,  from  injury 
caused  by  the  action  of  a  neighbouring  State.  The  three 
decisions  are  not  easily  reconcilable,  and  the  conflict  be- 
tween the  first  case  and  the  two  later  ones  really  marks 
a  change  of  mind  in  the  judges,  who  were  gradually  led 
to  accept  a  broader  view  of  their  jurisdiction.  The  main 
facts  have  already  been  briefly  stated,  but  in  this  chapter 
they  require  a  slightly  fuller  analysis. 

The  first  of  the  group  is  Louisiana  v.  Texas  (1900),^ 

a  dispute  which,  if  it  had  arisen  between  independent 

States,  might  easily  have  led  to  war.     Texas  by  statute 

had  given  to  her  own  civil  authorities  wide  powers  to 

make  and  enforce  very  drastic  quarantine  regulations. 

These  powers  included  the  right  to  detain  vessels,  per- 

^  Pennsylvania  v.   Wheeling   &   Belmont  Bridge  Co.    (1856),   18 
Howard,  421. 
293  U.  S..  13. 
3  176  U.  S.,  I. 


y%  AMERICAN  SUPREME  COURT 

sons,  and  property  coming  into  Texas  from  localities 
deemed  to  be  infected.  In  1899,  so  Louisiana  alleged, 
the  Health  Officer  of  Texas  took  advantage  of  the  occur- 
rence of  a  single  case  of  yellow  fever  in  New  Orleans,  in 
a  district  several  miles  from  the  commercial  quarter,  to 
lay  an  embargo  on  all  inter-State  commerce  between  New 
Orleans  and  the  State  of  Texas,  and  this  embargo  was 
enforced  by  armed  guards  posted  at  the  frontier. 
Louisiana  complained  that  the  real  motive  underlying  the 
embargo  was  the  desire,  not  to  protect  the  public  health, 
but  to  divert  commerce  from  New  Orleans  to  the  port  of 
Galveston  in  Texas.  In  proof  of  this  she  alleged  that 
commerce  entering  Galveston  direct  from  the  seriously 
infected  ports  of  Mexico  and  other  countries  was  treated 
leniently  and  only  subjected  to  reasonable  regulations. 
Finally  she  claimed  that  the  whole  action  of  Texas  was 
really  an  attempt  to  regulate  inter-State  commerce,  which 
is  one  of  the  matters  reserved  under  the  Constitution  to 
the  United  States. 

The  Court,  however,  refused  to  entertain  the  suit. 
There  was  considerable  difference  of  opinion  among  the 
judges,  and  some  who  concurred  in  the  result  did  so  for 
divergent  reasons.  The  decision  was  explained  in  the 
later  case  of  Missouri  v.  Illinois  on  the  ground  that  "  the 
Court  did  not  decline  jurisdiction,  but  exercised  it  in 
holding  that  the  facts  alleged  in  the  bill  did  not  justify 
the  Court  in  granting  the  relief  prayed  for."  ^  The  dis- 
tinction seems  a  little  fine-drawn  in  view  of  the  statement 
of  Chief  Justice  Fuller  that  "  if  the  case  stated  is  not  one 
presenting  a  controversy  between  these  States,  the  exer- 
cise of  original  jurisdiction  by  this  Court  as  against  the 
State  of  Texas  cannot  be  maintained."  ^ 

It  is,  however,  needless  to  linger  over  these  verbal  re- 
finements.    The   substantial    reason    for   the  judgment 
1 180  U.  S.,  240.  2 176  u.  S..  19. 


CASES  OF  INJURY  BY  STATE  ACTION       79 

seems  to  have  been  that  Louisiana  could  not  maintain  a 
suit  to  protect  the  people  of  New  Orleans,  who  were  the 
parties  principally  affected  by  the  Texan  regulations. 
She  was  not  entitled  to  act  as  "parens  patriae,  trustee, 
guardian  or  representative  of  all  her  citizens."  ^  The 
majority  of  the  Court  also  took  the  view  that  Texas  had 
not  so  far  adopted  or  authorized  the  action  of  her  health 
officer  as  to  make  it  her  own.  Altogether  the  decision 
seems  to  rest  upon  a  narrow  and  technical  reasoning 
which  contrasts  strongly  with  the  general  tendency  of  the 
Court  to  avoid  technicalities  and  to  base  its  judgments 
upon  broad  principles  of  justice  and  fair  dealing. 

The  demurrer  of  Texas  having  been  upheld,  the  case 
ended,  and  no  investigation  of  the  merits  was  possible. 
The  international  lawyer  will  doubtless  regret  the  lost 
opportunity  of  an  argument  upon  a  matter  of  funda- 
mental importance  in  international  law,  namely,  the  ex- 
tent to  which  a  State  may  manipulate  its  own  municipal 
laws  for  the  purpose  of  inflicting  injury  upon  a  neigh- 
bour. According  to  the  Chief  Justice  such  matters  can- 
not be  judicially  investigated  at  all.  "  Public  policy,"  he 
said,  "  forbids  the  imputation  to  authorised  official  action 
of  any  other  than  legitimate  motives."  ^  Such  an  as- 
sumption is  of  course  notoriously  at  variance  with  known 
facts,  and  it  is  to  be  hoped  that  no  international  court 
will  thus  restrict  its  usefulness  with  needless  fictions. 

In  the  next  year  the  Court  was  faced  in  the  case^of 
Missouri  v.  Illinois  ^  with  a  similar  problem,  although  no 
question  of  malice  was  here  involved.  These  two  States 
are  bounded  by  the  Mississippi,  and  the  city  of  St.  Louis 
stands  on  the  western  or  Missouri  bank  of  the  river  forty- 
three  miles  below  the  mouth  of  the  Illinois  River,  which 
flows  entirely  through  the  territory  of  Illinois.  The  dis- 
pute arose  out  of  a  drainage  scheme  whereby  Illinois 
1 176  U.  S.,  19.  2  176  u.  S.,  18.  3 180  u.  S.,  208. 


8o  AMERICAN  SUPREME  COURT 

proposed  to  divert  the  sewage  of  Chicago  from  Lake 
Michigan  into  the  Illinois  River,  from  which  it  would  of 
course  flow  into  the  Mississippi  above  St.  Louis.  The 
sewage  was  to  be  brought  from  Chicago  to  the  Illinois 
River  by  a  specially  constructed  canal.  Missouri  con- 
tended that  this  great  mass  of  crude  sewage  would  so 
pollute  the  waters  of  the  Mississippi  as  to  render  them 
unfit  for  ordinary  use,  and  would  seriously  injure  the 
health  of  her  inhabitants. 

As  we  have  already  seen,  a  majority  of  the  judges  held 
in  this  case  that  the  controversy  was  one  within  the  juris- 
diction of  the  Court,  though  Chief  Justice  Fuller  and  two 
of  his  brethren  took  the  same  line  as  they  had  taken  in 
the  Texas  case.  For  the  majority  Mr.  Justice  Shiras 
observed : 


"  It  must  surely  be  conceded  that,  if  the  health 
and  comfort  of  the  inhabitants  of  a  State  are  threat- 
ened, the  State  is  the  proper  party  to  represent  and 
defend  them.  If  Missouri  were  an  independent  and 
sovereign  State  all  must  admit  that  she  could  seek 
a  remedy  by  negotiation,  and,  that  failing,  by  force. 
Diplomatic  powers  and  the  right  to  make  war  having 
been  surrendered  to  the  general  government,  it  was 
to  be  expected  that  upon  the  latter  would  be  devolved 
the  duty  of  providing  a  remedy,  and  that  remedy. 
we  think,  is  found  in  the  constitutional  provisions  we 
are  considering."  ^ 

The  jurisdiction  having  been  thus  affirmed  a  long 
pause  ensued,  and  the  case  did  not  come  on  for  argument 
on  the  merits  until  1906.^  The  question  now  became 
mainly  one  of  fact,  and  a  mass  of  scientific  and  other  evi- 
dence was  laid  before  the  Court.  The  burden  of  proof 
lay  upon  Missouri,  who  had  to  establish  that  the  acts  of 

1180  U.  S.,  241.  2200  U.  S,  496. 


CASES  OF  INJURY  BY  STATE  ACTION       8i 

Illinois  were  sufficient  to  create  a  **  nuisance  "  in  the  legal 
sense  of  the  word.  This  burden  she  failed  to  discharge. 
A  slight  increase  of  typhoid  fever  at  St.  Louis  proved 
nothing,  for  there  was  no  corresponding  increase  along 
the  banks  of  the  Illinois  River  itself.  This  river  appeared 
to  have  been  actually  improved  by  the  change.  The  intro- 
duction of  a  large  body  of  fresh  water  from  Lake  Michi- 
gan transformed  it  from  a  sluggish  stream  into  a  quick 
and  clear  one,  to  which  edible  fish  had  now  returned. 
The  waters  of  the  Missouri  River  appeared  to  be  in  fact 
more  polluted  than  those  of  the  Illinois,  which  falls  into 
the  Mississippi  slightly  higher  up  than  the  mouth  of  the 
Missouri.  Any  inconvenience  that  St.  Louis  suffered 
might,  therefore,  be  easily  attributable  to  the  Missouri 
River,  flowing  through  Missouri  territory. 

This  really  disposed  of  the  case,  for  it  could  not  be 
argued  that  the  action  of  Illinois  was  unlawful  except 
upon  the  ground  of  nuisance.  Since  the  rivers  were 
navigable  Congress  might  have  undertaken  to  regulate 
them,  but,  as  it  had  not  done  so,  Illinois  was  free  to  act 
in  any  way  that  did  not  violate  the  rights  of  her  neigh- 
bours. Upon  the  application  of  Illinois  Missouri  was 
ordered  to  pay  the  costs  of  the  suit.^ 

In  the  case  of  Kansas  v.  Colorado  the  question  of  juris- 
diction was  decided  in  1902,^  but  the  final  decision  upon 
the  merits  was  not  reached  until  1907.^  The  question 
was  one  of  the  respective  rights  of  the  parties  in  the 
waters  of  the  Arkansas  River.  This  river  rises  in  the 
Rocky  Mountains  and  drains  a  basin  of  about  22,cxx) 
square  miles  in  the  State  of  Colorado  before  it  enters 
Kansas.  Much  of  this  area  being  mountainous  the  river 
receives  a  large  additional  volume  of  water  in  the  spring. 
In  Kansas  the  stream  flows  through  alluvial  lands,  and 
drains  an  area  of  less  than  four  thousand  square  miles. 

1 202  U.  S.,  600.         2 185  u.  S.,  125.         3  206  U.  S..  46. 
P.  4345  F 


82  AMERICAN  SUPREME  COURT 

Owing  to  the  porous  nature  of  the  soil  most  of  the  rain- 
fall in  this  area  did  not  reach  the  river/ 

Kansas  complained  that  she  was  being  deprived  of  the 
natural  flow  of  the  water  owing  to  certain  extensive  ir- 
rigation works  that  were  being  carried  out  under  the 
authority  of  the  Colorado  legislature,  with  the  result  that 
a  large  portion  of  Kansas  territory  was  in  danger  of  be- 
coming a  desert.  Colorado,  after  vainly  disputing  the 
jurisdiction  of  the  Court,  maintained  that  she  was  entitled 
to  deal  exactly  as  she  pleased  with  all  the  waters  in  her 
own  territory,  even  if  the  result  should  be  to  cut  off  the 
water  from  Kansas  altogether.  This  was  an  appeal  to 
sovereign  rights.  Kansas,  on  the  other  hand,  took  her 
stand  on  the  English  common  law  rule  that  all  riparian 
owners  have  equal  rights  in  the  uninterrupted  flow  of  the 
stream.  In  other  words,  she  asked  the  Court  to  regard 
the  question  as  one  of  strictly  legal  rights  between  indi- 
viduals. Furthermore  she  relied  upon  the  fact  that  she 
entered  the  Union  in  1861,  whereas  Colorado  was  not 
admitted  until  1876;  from  which  it  would  follow,  that  if 
Kansas  possessed  any  rights  in  the  water  before  1876, 
they  could  not  be  afterwards  diminished  by  the  admission 
to  the  Union  of  another  State. 

When  the  case  came  on  for  final  hearing  in  1907  the 
United  States  claimed  to  intervene  on  the  ground  of  a 
paramount  interest  in  the  controversy.  It  was  argued 
that  by  virtue  of  superior  sovereignty  the  Federal  Gov- 
ernment was  entitled  to  deal  with  all  flowing  waters  for 
the  general  benefit  of  the  whole  community,  irrespective 
of  the  local  and  conflicting  interests  of  particular  States. 
Such  wide  powers  found  no  place  in  the  actual  words  of 
the  Constitution,  but  counsel  argued  that  they  were  to  be 

1 1  hope  this  brief  statement  sufficiently  summarises  the  essential 
facts.  347  witnesses  were  examined,  and  the  evidence  amounted  to 
8,559  typewritten  pages,  with  122  exhibits  (206  U.  S.,  105-6).  See 
also  the  conclusions  of  the  Court,  p.  86,  post. 


CASES  OF  INJURY  BY  STATE  ACTION       83 

implied  from  the  power  given  to  Congress  to  "  regulate 
commerce."  The  Court,  however,  refused  to  hold  that 
powers  so  extensive  could  be  conferred  by  mere  implica- 
tion or  to  read  into  the  Constitution  a  general  authority 
to  Congress  to  undertake  the  reclamation  of  arid  lands. 
Congress  could  regulate  navigable  rivers,  but  the 
Arkansas  was  not  navigable  in  either  of  the  two  States, 
and  its  navigability  lower  down  was  admittedly  unaf- 
fected by  the  irrigation  works  in  Colorado.  The  inter- 
vention of  the  United  States  was  therefore  dismissed 
without  prejudice  to  any  claim  that  might  arise  concern- 
ing the  navigable  portion  of  the  river. 

The  adjustment  of  the  conflicting  rights  of  the  two 
States  was  a  more  difficult  matter.  The  first  problem  was 
to  find  a  rule  of  law  by  which  to  decide  the  question. 
The  law  of  Kansas  was  the  English  common  law  rule  of 
the  equal  rights  of  riparian  owners,  with  certain  statutory 
modifications.  Colorado,  on  the  other  hand,  had  declared 
in  her  Constitution  that  the  ownership  of  all  unappro- 
priated waters  within  the  State  was  vested  in  the  public, 
which  was  expressly  entitled  to  divert  them  for  beneficial 
uses.  Neither  State  could  enforce  its  rule  upon  the  other, 
and  there  was  no  Federal  statute  or  other  superior  law 
governing  both  parties. 

This  difficulty,  however,  did  not  deter  the  Court.  If 
no  law  existed,  the  Court  was  quite  prepared  to  make  one. 
The  Constitution  gave  it  jurisdiction  in  cases  involving 
questions  of  "  law  or  equity,"  and  "  law  "  in  1787  meant 
the  English  common  law,  at  any  rate  in  general  outline.^ 
This  the  Court  was  prepared  to  supplement,  if  required, 
by  the  rules  of  international  law,  and  cited  a  well-known 
dictum  of  its  own  delivered  in  one  of  the  prize  cases  aris- 
ing out  of  the  Spanish  War  of  1898: 

1206  U.  S.,  94-7. 


84  AMERICAN  SUPREME  COURT 

"  International  law  is  part  of  our  law,  and  must 
be  ascertained  and  administered  by  the  courts  of  jus- 
tice of  appropriate  jurisdiction,  as  often  as  questions 
of  right  depending  on  it  are  duly  presented  for  their 
determination."  ^ 

And  Chief  Justice  Fuller  had  himself  remarked  in  the 
first  stage  of  the  present  case : 

"  Sitting,  as  it  were,  as  an  international,  as  well 
as  a  domestic  tribunal,  we  apply  Federal  law.  State 
law,  and  international  law,  as  the  exigencies  of  the 
particular  case  may  demand."  ^ 

And  finally 

"  Through  these  successive  disputes  and  decisions 
this  Court  is  practically  building  up  what  may  not 
improperly  be  called  inter-State  common  law."  ^ 

The  cardinal  rule  governing  every  question  was  declared 
to  be  that  of  the  equality  of  States. 

"  Each  State  stands  on  the  same  level  with  all  the 
rest.  It  can  impose  its  own  legislation  on  no  one  of 
the  others,  and  is  bound  to  yield  its  own  views  to 
none.  .  .  .  Surely  here  is  a  dispute  of  a  justiciable 
nature  which  must  and  ought  to  be  tried  and  deter- 
mined. If  the  two  States  were  absolutely  independ- 
ent nations  it  would  be  settled  by  treaty  or  by  force. 
Neither  of  these  two  ways  being  practicable  it  must 
be  settled  by  decision  of  this  Court."  * 

Acting  upon  these  main  principles  the  Court  went  on 
to  analyse  the  rights  of  the  parties  to  the  case.  The 
claim  of  Kansas  to  treat  the  matter  as  one  merely  of  ordi- 
nary   riparian   rights   was   rejected,    as   was   the   right 

1  The  Paquete  Habana  (1900)  ;  172  U.  S.,  700. 

2  ig5  U.  S.,  146. 

3  206  U.  S.,  98. 
*206  U.  S.,  97-8. 


CASES  OF  INJURY  BY  STATE  ACTION       85 

claimed  for  Colorado  to  deal  as  she  pleased  with  the 
whole  body  of  water.  Nor  was  Colorado  to  be  allowed 
to  appropriate  all  the  water  and  to  recompense  Kansas 
by  something  else  of  equal  value ;  for  the  Court  to  allow 
this  would  be  for  it  to  make  a  bargain  between  the 
parties.  On  the  other  hand,  the  Court  would  consider 
the  general  benefit  to  the  land  in  both  States. 

"  For  instance,  if  there  be  many  thousands  of 
acres  in  Colorado  destitute  of  vegetation,  which  by 
the  taking  of  water  from  the  Arkansas  River  and  in 
no  other  way  can  be  made  valuable  as  arable  lands 
producing  an  abundance  of  vegetable  growth,  and 
this  transformation  of  desert  land  has  the  effect, 
through  percolation  of  water  in  the  soil,  or  in  any 
other  way,  of  giving  to  Kansas  territory,  although 
not  in  the  Arkansas  valley,  a  benefit  from  water  as 
great  as  that  which  would  inure  by  keeping  the  flow 
of  the  Arkansas  in  its  channel  undiminished,  then  we 
may  rightfully  regard  the  usefulness  to  Colorado  as 
justifying  its  action,  although  the  locality  of  the 
benefit  which  the  flow  of  the  Arkansas  through 
Kansas  [causes]  has  territorially  changed.   .    .    . 

*'  Will  not  the  productiveness  of  Kansas  as  a 
whole,  its  capacity  to  support  an  increasing  popu- 
lation, be  increased  by  the  use  of  the  water  in  Colo- 
rado for  irrigation  ?  May  we  not  consider  some  ap- 
propriation by  Colorado  of  the  waters  of  the 
Arkansas  to  the  irrigation  and  reclamation  of  its 
arid  lands  as  a  reasonable  exercise  of  its  sovereignty 
and  as  not  unreasonably  trespassing  upon  any  rights 
of  Kansas?"^ 

Mr.  Justice  Brewer  went  on  to  point  out  that  the  Kansas 
law  itself  recognised  the  right  of  appropriating  water  for 
irrigation,  subject  to  an  equitable  division  among  the 
riparian  proprietors.  He  further  observed  that  a  strict 
application  of  the  common  law  rule  might  result  in  Okla- 

^206  U.  S.,  100-2. 


86  AMERICAN  SUPREME  COURT 

homa  making  the  same  claim  against  Kansas  which 
Kansas  was  now  making  against  Colorado,  with  the  prac- 
tical result  that  the  river  could  not  be  used  for  irrigation 
purposes  at  all. 

As  the  final  decision  in  the  case  is  somewhat  compli- 
cated, it  is  best  stated  in  the  language  of  the  Court : 

"  We  are  of  the  opinion  that  the  contention  of 
Colorado  of  two  streams  ^  cannot  be  sustained ;  that 
the  appropriation  of  the  waters  of  the  Arkansas  by 
Colorado  for  the  purpose  of  irrigation,  has  dimin- 
ished the  flow  of  water  into  the  State  of  Kansas; 
that  the  result  of  that  appropriation  has  been  the 
reclamation  of  large  areas  in  Colorado,  transform- 
ing thousands  of  acres  into  fertile  fields  and  render- 
ing possible  their  occupation  and  cultivation  when 
otherwise  they  would  have  continued  barren  and  un- 
occupied ;  that  while  the  influence  of  such  diminution 
has  been  of  perceptible  injury  to  portions  of  the 
Arkansas  valley  in  Kansas,  particularly  those  por- 
tions closest  to  the  Colorado  line,  yet  to  the  great 
body  of  the  valley  it  has  worked  little,  if  any,  detri- 
ment, and  regarding  the  interests  of  both  States  and 
the  right  of  each  to  receive  benefit  through  the  ir- 
rigation and  in  any  other  manner  from  the  waters 
of  this  stream,  we  are  not  satisfied  that  Kansas  has 
made  out  a  case  entitling  it  to  a  decree.  At  the  same 
time  it  is  obvious  that  if  the  depletion  of  the  waters 
of  the  river  by  Colorado  continues  to  increase,  there 
will  come  a  time  when  Kansas  may  justly  say  that 
there  is  no  longer  an  equitable  division  of  benefits 
and  may  rightly  call  for  relief  against  the  action  of 
Colorado,  its  corporations  and  citizens,  in  appro- 
priating the  waters  of  the  Arkansas  for  irrigation 
purposes. 

"  The  decree  which,  therefore,  will  be  entered  will 
be  one  dismissing  the  petition  of  the  intefvenor, 
without  prejudice  to  the  rights  of  the  United  States 

iThis   refers  to   an   argument  put    forward   by   Colorado  based 
on  certain  technical  scientific  evidence.     See  206  U,  S.,  52-4,  115. 


CASES  OF  INJURY  BY  STATE  ACTION       87 

to  take  such  action  as  it  shall  deem  necessary  to 
preserve  or  improve  the  navigability  of  the  Arkansas 
River.  The  decree  will  also  dismiss  the  bill  of  the 
State  of  Kansas  as  against  all  the  defendants,  with- 
out prejudice  to  the  right  of  the  plaintiff  to  institute 
new  proceedings  whenever  it  shall  appear  that 
through  a  material  increase  in  the  depletion  of  the 
waters  of  the  Arkansas  by  Colorado,  its  corporations 
or  citizens,  the  substantial  interests  of  Kansas  are 
being  injured  to  the  extent  of  destroying  the  equi- 
table apportionment  of  benefits  between  the  two 
States  resulting  from  the  flow  of  the  river.  Each 
party  will  pay  its  own  costs."  ^ 

A  few  remarks  suggest  themselves  upon  the  five  cases 
noted  in  this  chapter.  Two  out  of  the  five  disputes — 
Cherokee  Nation  v.  Georgia  and  Louisiana  v.  Texas — 
arose  from  real  political  antagonism.  In  each  of  these 
two  cases  the  defendant  State  was  accused  of  deliberately 
violating  the  plaintiff's  rights  with  the  object  of  causing 
a  definite  injury.  The  three  remaining  cases  were  all  con- 
troversies arising  from  conflicting  interests  in  the  use  of 
inter-State  rivers.  In  these,  although  the  States  con- 
cerned did  not  agree  as  to  their  respective  rights,  there 
was  no  suggestion  of  political  antagonism  or  of  deliber- 
ately injurious  conduct.  The  cases  in  which  the  Chero- 
kees  and  Louisiana  were  the  plaintiffs  were  of  the  kind 
which  between  independent  nations  might  easily  have  led 
to  war.  The  three  river  cases,  on  the  other  hand,  all  be- 
longed to  the  class  of  dispute  which  nations  habitually 
submit  to  arbitration.  None  of  them  could  possibly  have 
provoked  an  armed  conflict  unless  the  parties  were  in- 
tent on  war  for  other  reasons. 

That  being  so,  it  is  somewhat  remarkable  that  in  each 
of  the  two  really  serious  cases  a  majority  of  the  Court 
dismissed  the  bill  on  rather  narrowly  technical  grounds, 

1206  U.  S.,  117. 


88  AMERICAN  SUPREME  COURT 

and  refused  to  investigate  the  merits  of  the  plaintiff's 
complaint.  There  is  of  course  no  need  to  suggest  that 
the  judges  deliberately  shirked  a  delicate  and  disagreeable 
duty.  But  the  Court  has  always  been  reluctant,  even  in 
the  clearest  cases,  to  pass  the  slightest  word  of  censure 
upon  the  conduct  of  a  State,  and  it  is  possible  that  this 
reluctance  may  have  unconsciously  biased  the  judges  in 
favour  of  the  technical  arguments  which  enabled  them 
to  avoid  pronouncing  a  judgment  that  would  have  in- 
volved the  severest  moral  censure  upon  the  delinquent. 

The  three  river  cases  do  not  call  for  much  comment. 
South  Carolina  v.  Georgia  was  easily  decided  on  the 
ground  that  the  Constitution  had  vested  in  Congress  suf- 
ficient authority  to  execute  the  improvements  in  question. 
Missouri  v.  Illinois  was  also  a  fairly  simple  case,  since  the 
evidence  showed  that  no  nuisance  had  in  fact  been  caused 
by  the  acts  complained  of.  Kansas  v.  Colorado  is  more 
interesting,  because  it  illustrates  the  difficulty  with  which 
an  international  court  must  frequently  be  faced  of  hav- 
ing no  accepted  rule  of  law  applicable  to  the  particular 
dispute.  The  laws  of  the  two  States  upon  the  subject- 
matter  of  the  controversy  were  in  sharp  conflict,  and 
there  was  no  rule  of  superior  authority  binding  upon  both 
parties.  It  is  by  no  means  satisfactory  for  litigants  to 
have  their  dispute  settled  according  to  a  rule  manu- 
factured by  the  Court  to  meet  the  particular  emergency. 
The  actual  decision  reached  was  in  the  nature  of  a  com- 
promise, as  is  often  the  case  in  international  arbitrations. 


CHAPTER  VI 
THE  ENFORCEMENT  OF  JUDGMENTS 

"  John  Marshall  has  pronounced  his  judgment :  let 
him  enforce  it  if  he  can!  "  With  this  scornful  challenge 
President  Andrew  Jackson  emphasised  the  chief  difficulty 
that  must  confront  any  court  which  issues  commands  to 
litigants  more  powerful  than  itself.  The  words  were 
spoken  in  1832,  and  referred  to  one  episode  in  the  long 
but  unsuccessful  resistance  of  the  Cherokee  Indians  to 
Georgian  oppression.^  Marshall,  a  zealous  Federalist,  led 
the  Supreme  Court  in  its  keen  solicitude  for  the  honour 
of  the  United  States,  which  was  deeply  pledged  by 
solemn  treaties  with  the  Indian  tribes.  Jackson,  a  rough 
soldier  from  the  frontier  of  Tennessee,  cared  little  for 
Indian  rights  and  little  for  the  judicial  settlement  of 
disputes.^ 

For  more  than  thirty  years  Marshall's  powerful  mind 
had  guided  the  Supreme  Court  in  a  policy  of  emphasising 
and  extending  the  powers  of  the  Federal  Government  at 
the  expense  of  the  rights  claimed  for  the  separate  States. 
At  the  time  of  the  conflict  with  Georgia  he  was  an  old 
man,  and  he  died  in  1835.  The  inauguration  of  Presi- 
dent Jackson  in  1829  had  marked  the  end  of  the  old 
Federalist  party.  Jackson  was  carried  into  office  on  the 
top  of  a  great  wave  of  popular  feeling,  which  demanded  a 
vigorous  reassertion  of  State  rights.    The  whole  of  the 

^  Worcester  v.  Georgia,  6  Peters,  515. 

2  When  the  Indians  appealed  to  Jackson  to  enforce  the  treaties 
he  replied  "  that  the  President  of  the  United  States  has  no  power 
to  protect  them  against  the  laws  of  Georgia"    (5  Peters,  9), 

89 


90  AMERICAN  SUPREME  COURT 

South  and  West,  together  with  the  great  States  of  New 
York  and  Pennsylvania,  were  soHdly  behind  him.  His 
opponent,  President  Adams,  carried  only  New  England 
and  the  three  smallest  of  the  Middle  States.  The  election 
was  regarded  as  a  great  triumph  for  democracy,  and 
among  the  defeated  enemies  of  democracy  popular  feel- 
ing included  Marshall  and  the  Supreme  Court.  Georgia 
successfully  maintained  her  resistance  to  its  decrees.^ 
The  Cherokees  were  ultimately  driven  beyond  the  Missis- 
sippi, and  the  result  of  the  whole  conflict  was  a  victory 
for  the  principle  of  State  sovereignty  over  the  principle 
of  the  judicial  settlement  of  inter-State  disputes. 

Under  the  patronage  of  Jackson  and  his  successors 
the  Supreme  Court  was  gradually  filled  with  judges  who 
made  no  further  attempt  to  extend  the  powers  of  the 
Federal  Government  at  the  expense  of  the  States. 

Another  incident  of  Jackson's  presidency  should  here 
be  noticed,  although  it  did  not  involve  the  question  of 
actual  resistance  to  the  Court.  The  grant  of  a  charter 
in  1 79 1  and  again  in  1816  to  the  Bank  of  the  United 
States  had  aroused  bitter  popular  hostility,  and  the 
legality  of  the  action  had  been  challenged  in  the  Supreme 
Court,  which  in  1819  had  decided  in  favour  of  the  Bank.^ 
The  charter  was  due  to  expire  in  1836.  In  1832  Con- 
gress passed  a  bill  for  its  renewal,  which  was  vetoed  by 
the  President.  In  his  message  to  Congress  Jackson  as- 
serted his  right  and  duty  under  the  Constitution  to  exer- 
cise his  own  judgment  on  the  question  of  the  constitu- 
tionality of  the  Bank,  irrespective  of  the  judgment  of  the 
Supreme  Court.  In  taking  this  action  he  was  un- 
doubtedly supported  by  the  public  opinion  of  the  day,  and 
his  Attorney-General,  Roger  Taney,  advised  him  that  he 

1  In  one  instance  she  actually  executed  a  Cherokee  in  defiance 
of  a  writ  of  error  addressed  to  the  Georgian  courts  by  the 
Supreme  Court  of  the  United   States    (5   Peters,  12). 

^McCulloch  V.  Maryland,  4  Wheaton,  316. 


THE  ENFORCEMENT  OF  JUDGMENTS    91 

was  right.  Upon  the  death  of  Marshall  in  1835  Taney 
was  appointed  Chief  Justice  of  the  Supreme  Court.  In 
that  capacity  in  1857  he  delivered  the  decision  of  the 
majority  in  the  Dred  Scott  case.^ 

The  Dred  Scott  judgment,  viewed  in  the  light  of  his- 
tory, so  far  from  being  a  means  of  averting  war,  must  be 
reckoned  as  one  of  the  causes  directly  contributing  to  the 
outbreak  of  the  Civil  War.  To  understand  its  signifi- 
cance we  must  go  back  to  1820  and  recall  the  "  Missouri 
Compromise  "  of  that  year.  That  agreement  had  pro- 
vided that  Missouri  should  be  admitted  to  the  Union  as 
a  slave  State,  but  that  for  the  future  there  should  be  no 
more  slavery  west  of  the  Mississippi  north  of  the  latitude 
of  36°  30'.  In  the  Dred  Scott  case  it  was  decided  that  a 
slave  taken  by  his  master  to  a  free  Territory  remained  a 
slave  and  the  property  of  his  master.  The  Court  further 
declared  that  the  Missouri  Compromise  was  invalid  and 
that  slavery  in  the  Territories  could  not  be  abolished 
either  by  Congress  or  by  the  Territorial  legislatures. 

The  decision  once  given  could  not  be  overruled  except 
by  constitutional  amendment.  Such  an  amendment 
would  require  the  concurrence  of  three-fourths  of  the 
State  legislatures,  which  was  clearly  impossible.  On  the 
5th  December,  i860,  Lincoln  was  formally  elected  Presi- 
dent of  the  United  States.  He  had  already  committed 
himself  to  the  doctrine  that  "  this  government  cannot  en- 
dure half  slave  and  half  free."  His  election  notified  the 
determination  of  the  North  and  West  that  slavery  should 
not  be  tolerated  outside  the  existing  Southern  States,  and 
the  South  also  rightly  interpreted  it  as  meaning  that  for 
the  future  the  government  of  the  Republic  had  definitely 
passed  into  the  hands  of  their  opponents.  The  answer 
to  the  challenge  was  not  slow  in  coming.  On  the  20th 
December  the  Convention  of  South  Carolina  repudiated 

^  Scott  V.  Sandford,  19  Howard,  393. 


92  AMERICAN  SUPREME  COURT 

the  Constitution  of  the  United  States  and  declared  that 
South  Carolina  resumed  her  sovereign  place  among  the 
nations.  The  remainder  of  the  Cotton  States  soon  ranged 
themselves  by  her  side.  On  the  12th  April,  1861,  South 
Carolina  fired  upon  the  Stars  and  Stripes  at  Fort  Sumter 
and  the  war  began. 

It  is  necessary  to  glance  briefly  at  these  political 
matters  if  we  would  appreciate  correctly  the  relation  of 
the  Supreme  Court  to  the  gravest  conflict  in  American 
history.  The  Dred  Scott  judgment  was  a  decision  in 
favour  of  the  South.  Of  the  nine  judges  then  composing 
the  Court  the  Chief  Justice  and  four  others  were  Demo- 
crats from  the  slave  States.  Of  the  four  from  the  free 
States  two  were  Democrats  and  two  were  Whigs.  The 
strict  legal  requirements  of  the  dispute  called  for  nothing 
more  than  a  ruling  upon  the  personal  status  of  Dred 
Scott,  and  Mr.  Justice  Nelson,  a  Democrat  from  New 
York,  confined  himself  to  this  point.  But  the  majority 
of  the  Court  could  not  resist  the  temptation  to  pronounce 
an  opinion  upon  the  great  constitutional  question.  Taney 
thought  that  the  Court  had  now  the  chance  of  finally 
settling  the  slavery  controversy  as  the  South  desired  it  to 
be  settled,  and  some  outside  pressure  was  brought  upon 
the  five  Southern  judges  to  take  this  course.  The  Court 
unfortunately  was  divided  along  party  lines,  the  two 
Whig  judges  dissenting  from  the  opinion  of  the  ma- 
jority.^ The  result  of  the  judgment  was  the  exact  op- 
posite of  what  Taney  had  expected  and  hoped.  Instead 
of  settling  the  question  of  slavery  in  the  Territories  once 
and  for  all  it  only  served  to  pile  fresh  fuel  upon  the 
abolitionist  agitation  and  to  let  loose  a  torrent  of  indigna- 
tion upon  the  Court  itself.  Many  violent  and  unjust  things 
were  said  about  the  judges,  who  had  undoubtedly  de- 

^The    luminous   judgment    of    Mr.    Justice    Curtis    became   one 
of  the  chief  political  documents  of  the  Republican  paii>. 


THE  ENFORCEMENT  OF  JUDGMENTS     93 

cided  in  accordance  with  their  sincere  convictions.  It  was 
generally  believed  among  Republicans,  and  the  charge 
was  even  countenanced  by  Lincoln,  that  the  decision  had 
been  arranged  between  President  Buchanan  and  the  Chief 
Justice.  The  accusation  was  quite  unjust  to  both  men, 
but  in  the  heated  atmosphere  of  the  time  it  was  inevitable 
that  it  should  be  made  and  believed.  The  only  conclu- 
sion which  we  can  draw  to-day  from  the  whole  episode  is 
that  in  1857  the  slavery  dispute  had  already  reached  a 
stage  at  which  it  could  no  longer  be  solved  by  an  appeal 
to  any  court  of  law. 

A  discussion  of  the  Dred  Scott  case  may  at  first  sight 
appear  to  have  little  bearing  upon  the  subject  of  the 
present  chapter,  since  the  judgment  was  actually  obeyed 
without  further  question  by  the  parties  concerned.  The 
parties  were  two  private  individuals  and  the  only  question 
presented  formally  for  determination  was  whether  Scott 
could  maintain  an  action  for  assault  and  battery  against 
his  master,  Sandford.  But  the  real  importance  of  the 
judgment  lay  in  the  solemn  decision  of  the  judges  that 
Congress  had  no  power  to  exclude  slavery  from  the 
Territories  of  the  United  States,  and  that  the  famous 
Missouri  Compromise  of  1820,  which  purported  to  do  so, 
was  invalid.  Upon  this  great  issue  the  judgment  of  the 
Court  was  not  accepted  or  obeyed,  for  it  was  overthrown 
by  the  victory  of  the  North  in  the  Civil  War.  After  the 
war,  while  the  South  lay  under  the  heel  of  the  North,  the 
judgment  was  legally  got  rid  of  by  the  Thirteenth  and 
Fourteenth  Amendments,  which  abolished  slavery  and 
made  the  negroes  citizens  of  the  United  States. 

At  no  time  was  the  Supreme  Court  asked  to  decide 
upon  the  question  whether  a  State  could  lawfully  secede 
from  the  Union.  It  is  obvious  that  any  State  which  was 
prepared  to  secede  must  have  assumed  that  its  action  was 
justifiable;  and  if  so,  the  mere  fact  of  secession  would 


94  AMERICAN  SUPREME  COURT 

make  it  an  independent  State  no  longer  subject  to  the 
jurisdiction  of  the  Supreme  Court. 

Turning  now  to  the  other  cases  noted  in  previous 
chapters  we  shall  find  that  the  question  of  the  enforce- 
ment of  judgments  is  one  that  has  been  continually  pre- 
sent to  the  minds  of  the  judges.  It  was  argued  at  some 
length  in  the  case  of  Chisholm  v.  Georgia  in  1793/  where 
counsel  for  the  plaintiff,  after  tentatively  suggesting  that 
the  decree  might  be  enforced  by  the  seizure  of  specific 
property,  was  driven  at  last  to  envelop  the  whole  matter 
in  a  cloud  of  rhetoric. 

"  Still,  we  may  be  pressed  with  the  final  question : 
*  What  if  the  State  is  resolved  to  oppose  the  execu- 
tion?' This  would  be  an  awful  question  indeed! 
He  to  whose  lot  it  should  fall  to  solve  it  would  be 
impelled  to  invoke  the  god  of  wisdom  to  illuminate 
his  decision.  I  will  not  believe  that  he  would  recall 
the  tremendous  examples  of  vengeance,  which  in 
past  days  have  been  inflicted  by  those  who  claim, 
against  those  who  violate,  authority.  I  will  not  be- 
lieve that  in  the  wide  and  gloomy  theatre,  over  which 
his  eye  should  roll,  he  might  perchance  catch  a  dis- 
tant glimpse  of  the  Federal  arm  uplifted.  Scenes 
like  this  are  too  full  of  horror  not  to  agitate,  not  to 
rack,  the  imagination.  .  .  .  But  that  any  State 
should  refuse  to  conform  to  a  solemn  determination 
of  the  Supreme  Court  of  the  Union  is  impossible, 
unless  she  shall  abandon  her  love  of  peace,  fidelity 
to  compact,  and  character."  ^ 

The  Court  did  not  determine  the  question,  Mr.  Justice 
Blair  expressing  the  hope  that  coercion  would  be  unneces- 
sary. What  actually  happened  was  that  Georgia  passion- 
ately refused  to  comply  with  the  judgment,  and  was  sup- 
ported in  her  refusal  by  public  opinion  throughout  the 
States.     The  particular  controversy  was  settled  by  the 

1 2  Dallas,  419.  2  2  Dallas,  427-8. 


THE  ENFORCEMENT  OF  JUDGMENTS        95 

Eleventh  Amendment/  but  the  fact  remained  that  the  first 
decree  entered  in  the  Supreme  Court  against  a  State  of 
the  Union  had  been  contemptuously  and  successfully 
defied. 

In  the  case  of  Rhode  Island  v.  Massachtisetts  (1838)  ^ 
counsel  for  Massachusetts,  arguing  against  the  jurisdic- 
tion of  the  Court,  laid  stress  upon  the  fact  that  no  means 
existed  for  enforcing  any  judgment  that  might  be  deliv- 
ered.    To  this  counsel  for  Rhode  Island  replied: 

"  No  process  would  necessarily  follow  a  final 
decree  in  this  cause.  We  ask  no  damages  of  Massa- 
chusetts; no  delivery  of  possession;  no  process  to 
compel  her  to  do  or  to  undo  anything.  All  we  ask 
is  a  decree,  ascertaining  and  settling  the  boundary 
line  between  the  two  States."  ® 

The  Court  did  not  feel  bound  to  decide  the  question,  and 
as  the  judgment  ultimately  went  in  favour  of  the  de- 
fendant State,  which  was  in  possession,  no  problem  as  to 
execution  was  presented. 

The  case  of  Kentucky  v.  Dennis  on,  Governor  of  Ohio 
(i860)  *  was  not  in  form  a  suit  against  a  State,  but  the 
Court  rightly  took  the  view  that  the  State  of  Ohio  was 
the  real  defendant.  Kentucky  demanded  that  the  Gov- 
ernor should  be  ordered  to  give  up  a  fugitive  from  jus- 
tice, a  free  negro  who  was  accused  of  helping  a  slave  to 
escape.  The  Constitution  (Art.  IV,  Sec.  2)  and  a  Fed- 
eral statute  of  1793  expressly  direct  the  surrender  by 
State  officials  of  all  fugitives  from  justice  escaping  from 
other  States.  The  constitutional  provision  covers  cases 
of  "  treason,  felony,  or  other  crime,"  and  the  Act  of  1793 
uses  the  same  words.  On  the  other  hand,  Ohio  was  a 
State  where  anti-slavery  feeling  was  strong,  and  Denni- 

1  See  p.  9,  ante.  ^  12  Peters,  705. 

2  12  Peters,  657.  *  24  Howard,  66. 


96  AMERICAN  SUPREME  COURT 

son  had  just  been  elected  as  Governor  by  the  Republican 
party  after  a  sensational  campaign.  The  whole  atmos- 
phere was  charged  with  forebodings  of  war. 

Chief  Justice  Taney,  delivering  the  opinion  of  the  Court, 
laid  down  in  the  first  place  that  the  Governor  was  obliged 
under  the  Constitution  and  statute  to  deliver  up  all  fugi- 
tives from  justice,  even  though  the  acts  with  which  they 
were  charged  might  not  be  offences  according  to  the  Ohio 
law.  The  Governor's  duty,  he  said,  was  purely  minis- 
terial and  did  not  permit  him  to  form  any  opinion  as  to 
the  merits  of  the  particular  case.  The  Union  of  the 
States  was  "  a  compact  binding  them  to  give  aid  and  as- 
sistance to  each  other  in  executing  their  laws,  and  to 
support  each  other  in  preserving  law  and  order  within  its 
confines,  whenever  such  aid  was  needed  and  required."  ^ 
Without  such  mutual  support,  said  the  Chief  Justice,  the 
Union  must  fail. 

Having  thus  emphasized  the  Governor's  duty  under  the 
Constitution,  Taney  concluded  his  judgment  by  observ- 
ing that  no  means  existed  for  compelling  its  enforcement. 

"  The  act  does  not  provide  any  means  to  compel 
the  execution  of  this  duty,  nor  inflict  any  punishment 
for  neglect  or  refusal  on  the  part  of  the  Executive 
of  the  State;  nor  is  there  any  clause  or  provision  in 
the  Constitution  which  arms  the  Government  of  the 
United  States  with  this  power.  Indeed,  such  a 
power  would  place  every  State  under  the  control  and 
dominion  of  the  General  Government,  even  in  the 
administration  of  its  internal  concerns  and  reserved 
rights.    .    .    . 

.  "  But  if  the  Governor  of  Ohio  refuses  to  dis- 
charge this  duty,  there  is  no  power  delegated  to  the 
General  Government,  either  through  the  Judicial  De- 
partment or  any  other  department,  to  use  coercive 
means  to  compel  him.  And  upon  this  ground  the 
motion  for  the  mandamus  must  be  overruled."  ^ 
1 24  Howard,  100.  ^  24  Howard,  107,  109-10. 


THE  ENFORCEMENT  OF  JUDGMENTS        97 

Taney  was  an  earnest  believer  in  slavery  and  at  the  same 
time  an  earnest  believer  in  State  rights,  and  he  certainly 
deserves  full  credit  for  a  judgment  in  which  respect  for 
these  two  principles  was  so  ingeniously  combined.  It 
need  hardly  be  added  that  the  fugitive  was  not  in  fact 
surrendered. 

To  understand  this  controversy  properly  it  should  be 
remembered  that  in  1850  Congress,  then  under  Southern 
influence,  had  passed  a  stringent  "  Fugitive  Slave  Act," 
to  be  enforced  in  all  States  by  Federal  officials.  The  mere 
affidavit  of  the  master  was  made  conclusive  evidence  of 
the  ownership  of  a  slave.  The  result  was  that  in  the 
North  fugitives  were  often  rescued  from  Federal  custody 
by  mobs,  with  the  open  approbation  of  influential  and 
respectable  men.  Furthermore  the  legislatures  of  the 
Northern  States,  including  Ohio,  passed  acts  the  whole 
object  of  which  was  to  make  the  enforcement  of  the 
Federal  law  as  difficult  as  possible.^  In  these  circum- 
stances it  was  not  likely  that,  where  anti-slavery  feeling 
was  aroused,  the  State  authorities  would  be  more  likely 
to  obey  the  judicial  than  the  legislative  organ  of  the 
Federal  Government. 

Many  years  passed  before  the  question  of  enforcing  a 
decree  against  a  State  was  again  argued  in  the  Supreme 
Court.  Most  of  the  cases  heard  were  boundary  disputes 
which  aroused  no  strong  political  feeling;  in  some  in- 
stances the  question  was  submitted  to  the  Court  by 
mutual  consent,  and  in  every  case  the  line  as  defined  by 
the  Court  was  accepted  by  both  States.  There  have  been 
three  cases,  namely,  Louisiana  v.  Texas,  Missouri  v. 
Illinois,  and  Kansas  v.  Colorado,^  in  which  the  plaintiff 

1  The  Supreme  Court  of  Wisconsin  went  so  far  as  to  release 
an  offender  by  habeas  corpus  from  the  custody  of  the  United 
States  Marshal,  and  refused  to  comply  with  a  writ  of  error 
r'irected  to  it  from  the  Supreme  Court  of  the  United  States. 
See  Ableman  v.  Booth  (1858),  21  Howard,  506. 

2  See  Chapter  V,  ante. 

P.  4345  G 


98  AMERICAN  SUPREME  COURT 

sought  an  injunction  restraining  the  defendant  State 
from  committing  the  acts  complained  of,  but  since  the  de- 
cision of  the  Court  in  each  case  was  in  favour  of  the 
defendant,  the  question  of  enforcing  an  injunction  did 
not  arise.  In  United  States  v.  Michigan  (1903)  ^ 
the  parties  came  to  an  agreement  after  the  main 
question  had  been  decided  in  favour  of  the  United 
States. 

The  case  of  South  Dakota  v.  North  Carolina  in  1904  ^ 
revived  the  problem  of  enforcement  but  as  a  matter  of 
form  rather  than  of  substance.  The  decision,  as  we  have 
already  seen,  was  to  the  effect  that  South  Dakota  was 
entitled  to  recover  from  North  Carolina  the  sums  due 
upon  certain  State  bonds  which  had  been  assigned  by  pri- 
vate holders  to  the  plaintiff  State.  The  relief  claimed  by 
the  bill  followed  the  precedent  of  private  suits,  demanding 
the  usual  remedy  by  foreclosure  and  sale  in  default  of 
payment.  This  remedy  was  possible  in  the  particular 
case,  since  the  bonds  had  been  issued  in  order  to  effect 
a  mortgage  of  certain  railway  stock  held  by  the  State  and 
the  stock  was  expressly  declared  to  be  collateral  security 
for  the  bonds. 

The  Court  in  its  judgment  ranged  at  large  over  the 
question  of  execution,  citing  the  dicta  of  various  judges 
to  the  effect  that  it  could  neither  order  the  property  of  a 
State  to  be  seized  nor  a  tax  to  be  levied.  But  in  this 
particular  case,  since  the  debt  was  secured  by  the  mort- 
gage of  specific  property,  it  was  held  that  the  ordinary 
remedy  by  foreclosure  could  be  applied.  A  decree  was 
accordingly  entered  directing  that  unless  the  sum  due  was 
paid  by  a  certain  date  the  marshal  of  the  Court  should 
sell  the  stock  by  public  auction  in  Washington  to  satisfy 
the  plaintiff's  claim. ^ 

1  See  Chapter  IV,  ante.  2  192  U.  S.,  286. 

3  192  U.  S.,  321-2. 


THE  ENFORCEMENT  OF  JUDGMENTS  ,99' 

The  decision  of  the  Court  was  that  of  a  bare  majority,* 
Mr.  Justice  White  (now  Chief  Justice)  observing  on  be- 
half of  the  minority: 

**  I  take  it  to  be  the  elementary  rule  of  public  law 
that,  whilst  the  contracts  of  a  sovereign  may  en- 
gender natural  or  moral  obligations,  and  are  in  one 
sense  property,  they  are  yet  obligations  resting  on 
the  promise  of  the  sovereign  and  possessing  no  other 
sanction  than  the  good  faith  and  honour  of  the 
sovereign  itself."  ^ 

The  minority  view  is  of  more  than  merely  academic  in- 
terest, since  the  Supreme  Court  of  the  United  States, 
unlike  the  British  House  of  Lords,  holds  itself  free  at  any 
time  to  reverse  its  own  previous  decisions.  There  is 
therefore  always  a  possibility  that  the  opinion  of  a 
minority  may  in  the  course  of  time  become  the  basis  for 
a  judgment  of  the  Court. 

It  is  in  our  own  day  that  the  question  of  enforcement 
has  taken  its  most  serious  form.  The  successful  resist- 
ance of  Georgia  to  the  Court  in  early  days  occurred  only 
in  cases  where  private  individuals  were  the  plaintiffs. 
The  seriousness  of  the  situation  recently  created  by  the 
case  of  Virginia  v.  West  Virginia  lies  in  the  fact  that  it 
was  in  effect  the  repudiation  by  a  State  of  its  obligation 
under  the  Constitution  to  accept  the  Supreme  Court  as 
the  final  arbiter  in  inter-State  disputes. 

We  have  already  seen  ^  that  on  the  14th  June,  1915, 
after  prolonged  litigation,  in  which  every  possible  con- 
sideration was  shown  by  the  Court  to  the  defendant  State, 
Virginia  obtained  a  decree  for  the  payment  of  the  sum  of 
over  twelve  million  dollars,  with  interest  at  five  per  cent, 
to  run  until  payment.  The  case  had  been  exhaustively 
considered  by  the  Court,  and  every  possible  defence  to 

1 192  U.  S.,  341-2.  2  Ante,  p.  71. 


:i:oo  ^       AMERICAN  SUPREME  COURT 

the  claim  had  been  carefully  examined  with  a  full  sense 
of  what  was  due  to  the  dignity  of  the  parties  and  the 
importance  of  the  controversy.  Upon  the  merits  of  the 
case  nothing  further  remained  to  be  said,  and  the  decision 
was  rendered  by  an  unanimous  Court. 

Virginia  then  waited  for  a  year,  but  nothing  happened. 
Then  she  moved  in  the  Supreme  Court  ^  for  a  writ  of 
execution.  In  reply  to  this  motion  West  Virginia  pleaded 
that  she  could  not  obey  the  judgment  except  through  the 
action  of  her  legislature,  which  would  not  meet  until 
January,  191 7.  She  alleged  further  that  she  had  no 
property  subject  to  execution,  and  concluded  by  denying 
that  the  Supreme  Court  had  any  authority  whatever  to 
enforce  a  money  judgment.  Upon  these  two  last  points 
the  Court  found  it  unnecessary  to  express  an  opinion  at 
the  time,  but  they  accepted  the  view  that  West  Virginia 
should  not  be  forced  to  act  until  her  legislature  had  met. 
The  motion  for  a  writ  of  execution  was  therefore  refused 
"  without  prejudice  to  the  renewal  of  the  same  after  the 
next  session  of  the  legislature  of  the  State  of  West  Vir- 
ginia has  met  and  had  a  reasonable  opportunity  to  pro- 
vide for  the  payment  of  the  judgment."  ^ 

The  legislature  of  West  Virginia  accordingly  met,  held 
its  ordinary  session,  and  adjourned  without  making  any 
attempt  to  satisfy  the  judgment.  In  19 18  the  question  of 
execution  therefore  came  before  the  Supreme  Court 
again,^  and  gave  Chief  Justice  White  the  opportunity  for 
a  long  and  learned  survey  of  the  whole  problem,  in  which 
he  examined  the  history  of  the  colonial  jurisdiction  of  the 
British  Privy  Council  and  also  the  voluminous  records 
of  the  discussions  preceding  the  adoption  of  the  Federal 
Constitution.  In  those  debates,  as  was  natural,  divergent 
views  had  found  expression,  and  the  Chief  Justice  cited 
several  opinions  which  strongly  favoured  the  grant  of 
1241  U.  S.,  531.  2241  U.  S.,  532.  2  246  U.  S.,  565. 


THE  ENFORCEMENT  OF  JUDGMENTS      igi 

coercive  powers  to  the  Federal  Government.  As  a  matter 
of  history  it  is,  however,  quite  clear  that  most  of  the 
States  would  never  have  entered  the  Union  if  they  had 
imagined  that  thereby  they  were  submitting  themselves 
to  the  possibility  of  Federal  coercion.  Of  the  contempo- 
rary papers  by  far  the  most  important  is  The  Federalist, 
the  series  of  collected  essays  in  which  Alexander  Hamil- 
ton, the  leader  of  the  Federalist  party,  together  with 
Madison  and  Jay,  urged  the  people  of  New  York  State 
to  give  their  adherence  to  the  Constitution.  In  No.  8i  of 
this  work  Hamilton  alludes  to  the  alarm  caused  by  the 
suggestion  that  the  establishment  of  Federal  Courts 
might  render  States  liable  to  be  sued  for  their  debts. 
Upon  this  he  remarks : 

"  It  is  inherent  in  the  nature  of  sovereignty  not  to 
be  amenable  to  the  suit  of  an  individual  without  its 
consent.  .  .  .  Unless  therefore  there  is  a  sur- 
render of  this  immunity  in  the  plan  of  the  conven- 
tion, it  will  remain  with  the  States,  and  the  danger 
intimated  must  be  merely  ideal.  .  .  .  There  is  no 
colour  to  pretend  that  the  State  governments  would, 
by  the  adoption  of  that  plan,  be  divested  of  the 
privilege  of  paying  their  own  debts  in  their  own  way, 
free  from  every  constraint  but  that  which  flows  from 
the  obligations  of  good  faith.  The  contracts  be- 
tween a  nation  and  individuals  are  only  binding  on 
the  conscience  of  the  sovereign  and  have  no  preten- 
sions to  a  compulsive  force.  They  confer  no  right 
of  action  independent  of  the  sovereign  will.  To 
what  purpose  would  it  be  to  authorise  suits  against 
States  for  the  debts  they  owe?  How  could  recov- 
eries be  enforced?  It  is  evident  it  could  not  be  done 
without  waging  war  against  the  contracting  State; 
and  to  ascribe  to  the  Federal  courts  by  mere  impli- 
cation, and  in  destruction  of  a  pre-existing  right  of 
the  State  governments,  a  power  which  would  involve 
such  a  consequence,  would  be  altogether  forced  and 
unwarrantable." 


r  .>  :  i.^ 


■162    '       AMERICAN  SUPREME  COURT 

Hamilton  is  speaking  only  of  suits  by  individuals,  but  it 
is  clear  from  the  last  words  of  the  passage  quoted  that 
he  did  not  believe  in  the  possibility  of  any  power  of 
enforcing  the  judgments  of  the  Supreme  Court  against 
a  recalcitrant  State.  When  we  remember  that  Hamilton 
was  the  chief  representative  of  the  extreme  Federalist 
view  it  is  obvious  that  the  general  opinion  of  his  day 
would  never  have  tolerated  the  notion  of  the  forcible 
execution  of  the  Supreme  Court's  decrees  against  a  State. 
Especially  is  it  certain  that  the  people  would  never  have 
agreed  to  the  use  of  force  for  the  collection  of  debts  due 
from  one  State  to  another. 

The  ideas  of  1788  need  not  be  accepted  in  1918,  unless 
they  have  been  embodied  in  a  document  of  binding  force, 
and  upon  this  great  question  of  enforcing  judgments  the 
Constitution  was  discreetly  silent.  The  Chief  Justice  ac- 
cordingly proceeded  to  examine  the  claims  of  the  parties 
before  the  Court.  Virginia  contended  that  the  judgment 
of  the  Supeme  Court  bound  the  defendant  State  "in  a 
governmental  capacity/'  and  rendered  State  property 
liable  to  execution.  She  claimed  further  that  the  Court 
could  order  the  West  Virginia  legislature  by  mandamus  to 
levy  a  tax  to  pay  the  debt,  a  practice  frequently  adopted 
when  the  defendant  was  a  city  corporation  or  other 
municipal  authority. 

All  these  contentions  were  expressly  denied  by  West 
Virginia,  which  claimed  in  general  terms  "  that  the  de- 
fendant as  a  State  may  not,  as  to  its  powers  of  govern- 
ment reserved  to  it  by  the  Constitution,  be  controlled  or 
limited  by  process  for  the  purpose  of  enforcing  the  pay- 
ment of  the  judgment."  ^ 

The  judges,  overruHng  the  argument  of  West  Virginia 
on  the  general  question,  held  that  the  Court  had  authority 
over  the  State  government,  and  that  the  right  to  pro- 

1246  U.  s.,  594-5. 


THE  ENFORCEMENT  OF  JUDGMENTS      103 

nounce  a  judgment  implied  the  right  to  use  the  appro- 
priate means  for  its  enforcement.  Numerous  decisions 
given  in  private  suits  were  cited  to  lend  authority  to  this 
somewhat  obvious  proposition.  There  is  no  difficulty  in 
stating  as  an  abstract  and  general  principle  that  the  judg- 
ments ought  to  be  enforced.  The  real  problem  is  to  de- 
cide upon  the  ways  and  means,  or,  as  the  Court  said, 
"  What  are  the  appropriate  remedies  for  such  enforce- 
ment?"' 

Here  the  Chief  Justice  was  on  more  difficult  ground. 
He  began  by  saying  that  it  was  within  the  power  of  Con- 
gress to  enforce  the  judgment  by  special  legislation,  and 
that  this  power  was  derived  from  the  necessity  of  pro- 
curing the  assent  of  Congress  to  the  contract  of  1861 
creating  the  debt.^  This,  we  may  remark,  would  be  in 
effect  shifting  the  responsibility  on  to  other  shoulders. 
The  Court  could  not  issue  orders  to  Congress,  nor  was 
Congress  under  any  legal  obligation  to  help  the  Court  out 
of  its  difficuhies.  All  that  the  Chief  Justice  could  mean 
was  that,  if  Congress  chose  to  pass  a  law  for  the  coercion 
of  West  Virginia,  the  Supreme  Court  would  be  prepared 
to  hold  it  valid.  On  general  principles  it  would  seem  un- 
desirable that  such  an  opinion  should  be  formally  pub- 
lished before  any  statute  had  been  actually  passed. 

In  the  second  place  the  Chief  Justice  went  on  to  con- 
sider "the  appropriate  remedies  under  existing  legisla- 
tion." Virginia  was  asking  for  a  mandamus  directly 
ordering  the  West  Virginian  legislature  to  levy  a  tax  to 
meet  the  judgment.  This  of  course  was  the  crux  of  the 
whole  matter  and  the  Court  decided  to  postpone  its  solu- 
tion of  the  difficulty.  The  Chief  Justice  treated  the  ques- 
tion as  being  "  whether  there  is  power  to  direct  the  levy 
of  a  tax  adequate  to  pay  the  judgment  and  provide  for  its 
enforcement  irrespective  of  State  agencies."  ^    The  Court 

1 246  U.  S..  600.  2  246  U.  S.,  601-3.  3  246  U.  S.,  604. 


I04  AMERICAN  SUPREME  COURT 

directed  the  case  to  be  adjourned  for  further  argument 
upon  this  point,  together  with  the  question  of  the  possi- 
bility of  execution  upon  State  property.  In  deciding 
upon  this  further  postponement  the  Court  expressed  a 
wish  to  give  West  Virginia  another  opportunity  of  com- 
plying with  the  judgment  and  at  the  same  time  to  give 
Congress  an  opportunity  of  taking  such  action  as  it  might 
think  fit. 

Since  the  rendering  of  the  judgment  wiser  counsels 
have  prevailed  with  the  West  Virginian  authorities,  and 
an  act  has  now  been  passed  levying  a  tax  for  the  gradual 
extinction  of  the  debt,  nearly  four  years  after  the  pro- 
nouncement of  the  decree  and  fifty-six  years  after  the 
debt  was  contracted.  Had  it  been  decided  to  prolong  the 
resistance,  it  is  not  easy  to  see  what  the  next  step  would 
have  been.  Even  if  the  Court  in  such  a  case  should 
decide  to  order  the  levy  of  a  tax  or  the  sequestration  of 
certain  property  there  is  no  security  that  the  controversy 
would  be  thereby  ended.  The  defendant  State  might  be 
no  more  willing  to  comply  with  such  orders  than  with  the 
original  decree.  Or  again  if  Congress  should  consent  to 
pass  coercive  legislation  we  cannot  be  sure  that  it  would 
be  obeyed.  Federal  legislation  has  before  now  been  suc- 
cessfully resisted  by  recalcitrant  States,  and  what  has  hap- 
pened before  may  happen  again.  Should  the  worst  come 
to  the  worst,  no  means  of  enforcing  such  a  decree  will 
remain  save  the  employment  of  Federal  troops.  Fortu- 
nately for  the  peace  and  fraternity  of  the  Union,  West 
Virginia  has  decided  not  to  force  the  matter  to  such  a 
grave  crisis.  Even  an  outsider  may  be  permitted  to  ob- 
serve that  the  repudiation  of  a  debt  solemnly  contracted 
is  not  the  best  ground  upon  which  to  fight  for  an  assertion 
of  "  sovereign  "  rights,  and  if  this  grave  issue  must  one 
day  be  decided,  it  is  better  that  the  resisting  State  should 
be  able  to  found  her  claim  upon  some  higher  ground  of 


THE  ENFORCEMENT  OF  JUDGMENTS       105 

justice  and  policy.  But  the  "  more  perfect  Union " 
grows  stronger  as  the  years  go  on,  and  as  the  echoes  of 
old  controversies  die  away  we  may  hope  that  no  State 
will  seek  to  reawaken  them  by  a  fresh  challenge  to  the 
authority  of  an  united  nation. 


CHAPTER  VII 
GENERAL  CONCLUSIONS 

It  remains  to  ask  whether  we  can  draw  from  these 
cases  any  practical  lessons  for  our  own  day.  When  we 
are  seeking  to  set  up  a  Court  of  the  Nations  as  a  means 
of  avoiding  war,  what  can  we  learn  from  the  history  of 
the  Supreme  Court  of  the  United  States? 

It  is  possible  to  err  in  two  ways.  Both  the  extreme 
partisans  and  the  extreme  opponents  of  a  League  of 
Nations  may  by  selecting  their  evidence  find  much  to 
support  their  particular  points  of  view.  The  advocates 
of  the  one  side  can  rightly  say  that  in  the  great  majority 
of  cases  the  decrees  of  the  Court  have  been  loyally  obeyed 
and  have  given  satisfaction  to  both  parties.  On  the  other 
hand  it  may  be  urged  that  in  cases  where  strong  passions 
have  been  aroused  the  decrees  have  been  successfully  re- 
sisted, and  that  even  in  our  own  day  the  Court  has  been 
for  a  time  faced  with  the  grave  problem  of  how  to  en- 
force its  decision  upon  a  recalcitrant  State. 

To  form  a  right  judgment  we  must  view  the  matter  in 
the  light  of  history.  When  the  scheme  of  a  Federal 
Supreme  Court  was  propounded  for  the  consideration  of 
the  States  in  1787  it  was  received  in  many  quarters  with 
the  fiercest  opposition.  At  the  present  day  it  may  be 
fairly  said  that  the  gloomy  prophecies  indulged  in  by  its 
opponents  have  been  entirely  falsified.  Although  its  early 
decisions  leaned  strongly  towards  Federalism,  the  Court 
has  not  lowered  the  dignity  of  States  nor  encroached 
upon  the  rights  reserved  to  them  under  the  Constitution. 

106 


GENERAL  CONCLUSIONS  107 

It  has  never  attempted  to  reduce  them  to  the  position  of 
mere  provinces  subordinate  in  all  things  to  the  will  of  the 
central  government.  The  balance  has  been  on  the  whole 
evenly  held  between  the  Federal  Government  and  the 
individual  States,  as  well  as  between  the  several  States  in 
their  relation  to  one  another.  In  cases  not  depending 
upon  the  interpretation  of  particular  documents  the  Court 
has  based  its  decisions  upon  the  broad  principles  of  inter- 
national law.  The  doctrine  of  the  absolute  equality  of  all 
States  has  been  faithfully  observed,  and  no  suggestion 
has  ever  been  made  that  the  judges  have  been  actuated  by 
any  desire  to  propitiate  the  stronger  at  the  expense  of  the 
weaker  States. 

The  limited  scope  of  this  essay  has  not  permitted  us 
to  examine  in  detail  the  procedure  followed  in  inter-State 
cases.  But  the  lawyer  who  cares  to  study  the  procedure 
in  the  original  reports  will  be  impressed  with  the  careful 
concern  which  the  Court  has  always  shown  for  the  dig- 
nity and  convenience  of  the  litigating  States.  Rules  which 
are  strictly  applied  to  ensure  the  proper  conduct  of  ordi- 
nary litigation  are  relaxed  when  the  parties  are  States  of 
the  Union.  Often  the  Court  appears  rather  to  advise 
than  to  command.  Technicalities  are  disregarded  so  far 
as  possible.  As  Mr.  Justice  Holmes  remarked  at  one 
stage  of  the  case  of  Virginia  v.  West  Virginia  (1911)  : 

"  The  case  is  to  be  considered  in  the  untechnical 
spirit  proper  for  dealing  with  a  quasi-international 
controversy,  remembering  that  there  is  no  municipal 
code  governing  the  matter,  and  that  this  Court  may 
be  called  on  to  adjust  differences  that  cannot  be  dealt 
with  by  Congress  or  disposed  of  by  the  legislature  of 
either  State  alone.  .  .  .  Therefore  we  shall  spend 
no  time  on  objections  as  to  multifariousness,  laches, 
and  the  like,  except  so  far  as  they  affect  the  merits, 
with  which  we  proceed  to  deal."  ^ 
1220  U.  S.,  27. 


io8  AMERICAN  SUPREME  COURT 

Indeed  there  is  no  case  which  better  illustrates  the  lengths 
to  which  the  Court  will  go  in  its  desire  to  respect  the 
amour  propre  of  a  State,  even  where  the  conduct  of  the 
State  does  not  call  for  sympathetic  treatment.  In  1914 
Chief  Justice  White  said,  in  granting  one  of  the  numer- 
ous requests  of  the  defendant  State  for  further  delay : 

"We  think  it  must  be  conceded  that  in  a  case 
between  ordinary  litigants  the  application  of  the 
ordinary  rules  of  legal  procedure  would  render  it 
impossible  under  the  circumstances  we  have  stated 
to  grant  the  request.  We  are  of  opinion,  however, 
that  such  concession,  should  not  be  here  controlling. 
As  we  have  pointed  out,  in  acting  in  this  case  from 
the  first  to  last  the  fact  that  the  suit  was  not  an  ordi- 
nary one  between  individuals,  but  was  a  controversy 
between  States  involving  grave  questions  of  public 
law  determinable  by  this  Court  under  the  exceptional 
grant  of  power  conferred  upon  it  by  the  Constitu- 
tion, has  been  a  guide  by  which  every  step  and  con- 
clusion hitherto  expressed  has  been  controlled.  And 
we  are  of  the  opinion  that  this  guiding  principle 
should  not  now  be  lost  sight  of,  to  the  end  that  when 
the  case  comes  ultimately  to  be  finally  and  irrevo- 
cably disposed  of,  as  come  ultimately  it  must  in  the 
absence  of  agreement  between  the  parties,  there  may 
be  no  room  for  the  slightest  inference  that  the  more 
restricted  rules  applicable  to  individuals  have  been 
applied  to  a  great  public  controversy,  or  that  any- 
thing but  the  largest  justice  after  the  amplest  oppor- 
tunity to  be  heard  has  in  any  degree  entered  into 
the  disposition  of  the  case.  This  conclusion,  which 
we  think  is  required  by  the  duty  owed  to  the  moving 
State,  also  in  our  opinion  operates  no  injustice  to  the 
opposing  State,  since  it  but  affords  an  additional 
opportunity  to  guard  against  the  possibility  of  error, 
and  thus  reach  the  result  most  consonant  with  the 
honor  and  dignity  of  both  parties  to  the  contro- 
versy." ^ 

1234  U.  S.,  121. 


GENERAL  CONCLUSIONS  109 

The  reader  will  note  the  gradual  growth  of  confidence 
in  the  Supreme  Court  as  evidenced  by  the  dates  of  the 
decisions.  Jurisdiction  having  been  denied  in  the  Chero- 
kee case  in  1831,  no  final  judgment  on  the  merits  in  any 
inter-State  case  was  reached  until  the  bill  of  Rhode  Island 
against  Massachusetts  was  dismissed  in  1846.  Alto- 
gether only  three  boundary  disputes  were  decided  before 
the  Civil  War.  Fourteen  boundaries  have  been  definitely 
fixed  by  the  Court  in  the  period  from  1870  to  our  own 
day,  and  all  the  other  cases  that  we  have  examined,  with 
the  exception  of  the  imsuccessful  suit  against  Governor 
Dennison  of  Ohio,  fall  within  the  same  period. 

The  reason  for  this  is  to  be  found  in  the  fact  that 
until  after  the  Civil  War  the  Supreme  Court  had  not 
really  made  its  position  secure.  Until  the  Southern 
claims  had  been  finally  overthrown  in  battle  American 
public  opinion  was  largely  dominated  by  the  doctrine  of 
"  State  Rights."  Down  to  the  time  of  Marshall's  death 
in  1835  the  Supreme  Court  had  always  leaned  to  a 
"  Federalist "  interpretation  of  the  Constitution,  and  this 
undoubtedly  brought  it  into  conflict  with  the  general 
trend  of  American  sentiment.  President  Van  Buren 
(1837- 1 841)  once  remarked  that  the  Court  would  never 
have  been  created  if  the  people  could  have  foreseen  what 
it  would  do.  Historically  there  is  little  doubt  that  he  was 
perfectly  right.  It  was  only  with  the  greatest  difficulty 
that  some  of  the  States  were  induced  to  accept  the  Con- 
stitution at  all.  Could  they  have  foreseen  the  interpre- 
tations which  Marshall  was  soon  going  to  place  upon  its 
somewhat  vague  language  it  is  perfectly  certain  that  noth- 
ing would  have  induced  them  to  agree  to  entrust  the 
Federal  Government  with  such  wide  powers.  At  the 
present  day,  taught  by  the  wisdom  of  experience,  we  are 
able  to  see  that  Marshall's  interpretation  of  the  Consti- 
tution was  the  only  one  which  could  preserve  it  for  future 


no  AMERICAN  SUPREME  COURT 

ages.  Had  the  narrower  doctrine  of  State  Rights  pre- 
vailed the  Union  would  either  have  gone  to  pieces  or 
have  been  forced  to  recast  its  Constitution.  But  we  can- 
not altogether  blame  the  men  of  an  earlier  day  for  not 
being  prophets. 

In  the  Civil  War  it  was  decided  by  the  sword  that  the 
separate  States  had  no  right  to  withdraw  from  the  Union. 
In  other  words  they  did  not  possess  the  most  elementary 
attribute  of  sovereign  communities,  the  right  of  deciding 
their  own  political  destiny.  Henceforth  the  ''  sover- 
eignty "  of  the  States  became  a  legal  fiction,  and  ceased 
to  be  any  longer  a  historical  or  political  fact.  The  word 
survives  in  the  technical  language  of  the  law  reports,  but 
disappears  from  the  speech  of  everyday  life.  In  the 
Supreme  Court  we  find  Colorado  claiming  her  "  sover- 
eign "  right  to  deprive  Kansas  of  water  and  other  States 
demanding  the  "  sovereign "  privilege  of.  repudiating 
their  debts.  But  the  decisions  of  the  Court  against  these 
extreme  claims  are  certainly  supported  by  the  common 
sense  of  the  average  American  citizen. 

The  true  inference  to  be  drawn  from  history  would 
seem  to  be  that  so  long  as  the  sense  of  State  sovereignty 
was  strong  the  Supreme  Court  was  comparatively  weak, 
and  did  not  always  command  the  confidence  of  the  States. 
Since  the  theory  of  State  sovereignty  was  overthrown  by 
force  of  arms  the  Supreme  Court  has  grown  steadily  in 
strength.  Now  that  West  Virginia  has  at  last  decided  to 
comply  with  the  judgment  given  against  her  in  19 15 — 
and  American  public  opinion  would  probably  have  ren- 
dered a  prolonged  resistance  ultimately  impossible — we 
can  say  that  there  has  been  no  case  of  State  resistance  to 
a  decree  of  the  Court  since  the  Civil  War.  Opposition 
to  the  Court  appears  from  time  to  time  in  American 
politics,  but  such  opposition  no  longer  follows  State  lines, 
and  is  not  based  upon  any  theory  of  State  rights. 


GENERAL  CONCLUSIONS  iii 

The  lesson  of  this  for  our  own  day  would  appear  to  be 
that  the  strength  of  any  international  Court  will  be  in 
inverse  proportion  to  the  strength  of  national  feeling  in 
the  States  composing  the  league.  No  statesman  of  any 
country  would  suggest  to-day  that  the  nations  of  the 
world  should  surrender  to  any  league  powers  anything 
like  so  great  as  those  committed  to  the  Federal  Govern- 
ment by  the  Constitution  of  the  United  States.  As  Mr. 
Justice  Brewer  once  said  in  the  Supreme  Court : 

"  It  is  no  longer  open  to  question  that  by  the 
Constitution  a  nation  was  brought  into  being,  and 
that  that  instrument  was  not  merely  operative  to 
establish  a  closer  union  or  league  of  States.  What- 
ever powers  of  government  were  granted  to  the 
nation  or  reserved  to  the  States  (and  for  the  de- 
scription and  limitation  of  those  powers  we  must' 
always  accept  the  Constitution  as  alone  and  abso- 
lutely controlling),  there  was  created  a  nation  to  be 
known  as  the  United  States  of  America,  and  as  such 
then  assumed  its  place  among  the  nations  of  the 
world."  ' 

This  essential  fact  of  American  history  must  always  be 
borne  in  mind  when  we  seek  to  institute  compari- 
sons between  the  Supreme  Court  and  any  possible 
tribunal  of  the  League  of  Nations.  It  is  neither  possible 
nor  desirable  to  fuse  the  existing  civilised  States  of  the 
world  into  a  single  nation  and  the  tribunal  will  have  to 
deal  with  States  in  which  sovereignty  is  not  merely  a 
legal  formula,  but  a  political  fact. 

It  must  also  be  remembered  that  even  the  close  ties 
which  have  united  the  American  States  into  a  single 
nation  have  not  in  all  cases  been  strong  enough  to  ensure 
compliance  with  the  decrees  of  the  Supreme  Court. 
Georgia  successfully  defied  the  Court  in  the  Chisholm  and 

^Kansas  v.  Colorado   (1907),  206  U.  S.,  80. 


112  AMERICAN  SUPREME  COURT 

Worcester  cases,  and  her  defiance  was  approved  by  the 
political  opinion  of  the  day.  If  the  Court  had  ventured 
to  assume  jurisdiction  of  the  Cherokee  case  there  is  no 
doubt  that  its  decision  would  have  been  defied  again. 
Georgia's  action  was  deliberately  taken  in  disregard  of 
solemn  treaties  binding  the  United  States,  which  under 
the  Constitution  (Art.  VI)  are  declared  to  be  the 
supreme  law  of  the  land.  It  is  hardly  likely  that  she 
would  have  shown  any  more  respect  for  the  judgment  of 
a  highly  unpopular  tribunal.  As  for  the  Dred  Scott  case, 
it  aroused  no  direct  resistance,  because  in  form  it  was 
only  a  dispute  between  a  negro  and  his  master.  But  in 
substance  it  was  a  judicial  decision  that  the  South  was 
right  and  the  North  was  wrong,  and  there  is  no  doubt 
that  Lord  Bryce  correctly  estimates  its  significance  when 
he  says : 

"  This  judgment,  since  the  language  used  in  it 
seemed  to  cut  off  the  hope  of  a  settlement  by  the 
authority  of  Congress  of  the  then  (1857)  pending 
disputes  over  slavery  and  its  extension,  did  much  to 
precipitate  the  Civil  War."  ^ 

Of  the  more  recent  cases  the  two  which  have  caused  the 
strongest  political  feeling  have  been  Louisiana  v.  Texas 
and  Virginia  v.  West  Virginia.  In  the  former  case  the 
Court  declined  to  pass  judgment  upon  the  merits  of  the 
controversy;  but  it  is  by  no  means  certain  that  Texas 
would  have  obeyed  an  adverse  decision.  West  Virginia, 
after  prolonging  her  resistance  to  the  point  of  danger, 
has  lately  decided  to  obey  the  Constitution  and  the  Court, 
but  she  has  certainly  shown  no  eagerness  to  comply  with 
the  decree  pronounced  in  191 5. 

The  present-day  moral  to  be  drawn  from  these  cases  is 
that  we  cannot  afford  to  rely  solely  upon  judicial  means 

^  The  American   Comonotiwealth   (ed.   191 1),  vol.  i,  p.  264. 


GENERAL  CONCLUSIONS  113 

of  settlement  in  cases  which  arouse  strong  national  feel- 
ing and  spring  from  a  conflict  of  principles  that  cannot 
be  resolved  entirely  by  legal  rules.  These  cases  may  be 
imagined  in  some  such  form  as  this : 

A  dispute  arises  between  Utopia  and  Arcadia  which 
inflames  the  national  feeling  of  both  countries  and  excites 
the  keenest  interest  throughout  the  civilised  world.  It  is 
referred  to  an  international  Court  of  five  judges.  Two  of 
these  come  from  States  where  popular  sympathy  is  with 
Utopia,  and  two  from  countries  where  feeling  runs  high 
in  favour  of  Arcadia.  The  fifth  belongs  to  a  country 
where  feeling  is  sharply  divided,  as  it  has  been  in  certain 
neutral  States  during  the  late  war.  Even  the  best  and 
most  upright  of  judges  are  but  men,  and  their  minds  are 
moulded  by  the  same  influences  as  those  of  other  men. 
It  is  almost  certain  that  in  such  a  case  the  decision  of  the 
Court  will  be  rendered  by  a  majority  of  three  to  two,  and 
the  actual  result  will  depend  upon  the  party  in  his  own 
State  to  which  the  fifth  judge  happens  to  belong. 

Mutatis  mutandis,  that  is  what  happened  in  the  Dred 
Scott  case.  It  is  also  what  happened  in  the  Legal  Tender 
Cases  of  1870  and  187 1,  where  the  Court  in  the  later  case 
reversed  its  own  decision  in  the  earlier  case,  the  judges 
being  divided  exactly  along  party  lines.  In  spite  of  the 
bitter  things  said  about  the  judges  at  the  time  there  is 
no  doubt  that  they  decided  quite  honestly  according  to 
their  lights.  But  it  is  obvious  that  independent  nations 
will  never  consider  themselves  to  be  bound  by  such  a  de- 
cision in  cases  where  their  honour  or  vital  interests  are 
at  stake. 

We  are  therefore  driven  to  conclude  that  no  possible 
Court  of  the  Nations  can  provide  us  with  an  absolute 
security  against  war.  This  statement  applies  not  only  to 
cases  of  deliberate  outrage,  such  as  the  Prussian  raid 
upon  the  civiHsation  of  Europe  in  1914,  but  to  cases 
P.  4345  H 


114  AMERICAN  SUPREME  COURT 

where  there  is  an  honest  conflict  of  interests  or  ideals 
and  good  arguments  can  be  urged  on  both  sides.  We  are 
not,  however,  driven  by  such  a  conclusion  to  infer  that  a 
permanent  international  tribunal  is  an  impracticable 
dream  or  that  it  involves  an  intolerable  surrender  of 
national  rights.  The  history  of  the  American  Supreme 
Court  and  the  history  of  international  arbitration  com- 
bine to  negative  any  such  merely  cynical  conclusion. 

There  are  three  possible  methods  of  settling  any  dis- 
pute— agreement,  litigation,  and  fighting.^  This  is 
equally  true  of  nations  and  of  individuals.  The  practice 
of  deciding  individual  quarrels  by  fighting  prevails  to  a 
greater  or  less  extent,  whatever  the  law  may  be,  in  all 
countries,  and  in  no  civilised  community  is  it  commoner 
than  it  is  in  some  of  the  American  States."  Any  Euro- 
pean visitor  who  has  the  opportunity  of  travelling  in  the 
more  out  of  the  way  parts  of  the  Southern  and  Western 
States  is  apt  to  be  surprised  when  he  finds  how  widely 
recognised  by  public  opinion  is  the  right  of  private  kill- 
ing. For  example,  in  some  States  it  is  practically  im- 
possible to  procure  a  conviction  for  murder  or  even  man- 

1 A  stricter  analysis  might  even  reduce  th/e  alternatives  to 
two  by  excluding  litigation.  If  a  legal  decision  is  peaceably  obeyed 
by  both  parties,  the  dispute  has  really  been  settled  by  agreement, 
that  is  to  say,  agreement  to  accept  the  judgment  of  the  Court.  If, 
on  the  other  hand,  one  party  refuses  to  comply,  the  decree  can 
only  be  carried  out,  if  at  all,  by  invoking  the  aid  of  policemen, 
bailiffs,  or  other  persons  accustomed  to  use  violence.  In  such  a 
case  the  State  really  places  a  part  of  its  fighting  forces  at  the 
disposal  of  the  successful  litigant. 

2  Professor  J.  C.  Gray  of  Harvard  throws  an  interesting  side- 
light upon  this  question  {Nature  and  Sources  of  the  Law,  p.  ii)  : 
"  In  some  of  the  United  States, — as,  for  example,  Texas,— statutes- 
exempt  property  of  debtors  to  a  very  large  amount  from  being 
taken  for  their  debts,  and  these  statutes,  judging  from  the  language 
of  the  Courts,  meet  with  the  hearty  approval  of  the  public  opinion 
of  the  neighborhood,  as  designed,  they  say,  *  to  cherish  and  support 
in  the  bosom  of  individuals,  those  feelings  of  sublime  independence 
which  are  so  essential  to  the  maintenance  of  free  institutions ' 
{Franklin  v.  Coffee,  i8  Tex.,  416)." 

When  a  man  finds  that  the  Courts  will  not  effectively  help  him 
to  collect  his^  debts,  it  is  possible  that  his  "  feelings  of  sublime 
independence  "  may  encourage  him  to  rely  upon  his  own  resources. 


GENERAL  CONCLUSIONS  115 

slaughter  if  the  slayer  is  actuated  by  any  reasonable  de- 
gree of  je?\)\\sy.  In  other  words,  public  opinion  in  such 
communities  acto  upon  precisely  the  same  principle  which 
leads  nations  into  war,  that  in  certain  cases  which  arouse 
strong  passions  men  cannot  be  expected  to  allow  lawyers 
to  decide  their  quarrels  for  them.  Yet  even  in  the  wildest 
and  remotest  of  these  communities  no  one  would  suggest 
that  the  existence  of  blood  feuds  is  a  good  reason  for 
abolishing  all  courts. 

Boni  judicis  est  ampliare  jurisdictionem ;  a  good  judge 
ought  to  aim  at  extending  his  jurisdiction.  The  real 
value  of  good  courts  is  that  they  develop  the  habit  of 
peaceful  settlement  at  the  expense  of  the  habit  of  fighting. 
Even  in  the  most  violent  communities  tribunals  that 
command  the  public  respect  will  gradually  draw  to  them- 
selves an  increasing  number  of  disputes  which  would 
otherwise  be  settled  by  the  use  of  firearms.  All  men  are 
largely  creatures  of  habit,  and  if  the  method  of  judicial 
settlement  once  comes  to  be  regarded  as  normal  it  will 
gradually  supersede,  even  though  it  may  never  entirely 
eradicate,  the  settlement  of  disputes  by  violent  means.  As 
Maine  has  pointed  out,  this  is  exactly  what  has  happened 
in  British  India.  The  establishment  of  a  system  of  honest 
and  efficient  tribunals  has  drawn  to  the  bar  a  vast  number 
of  disputes  which  would  otherwise  have  been  settled  by 
private  vengeance. 

It  is  precisely  the  same  with  nations.  States  are  com- 
munities of  men  with  the  characteristics  of  men,  and 
statesmen  develop  habits  of  government.  In  technical 
language,  they  follow  precedents.  If  any  international 
court  which  may  be  established  is  such  as  to  command 
the  confidence  of  the  nations  concerned  it  will,  as  time 
goes  on,  be  entrusted  more  and  more  frequently  with  the 
solution  of  international  controversies.  As  the  American 
Supreme  Court  has  more  than  once  expressed  it,  the 


ii6  AMERICAN  SUPREME  COURT 

tribunal  will  succeed  in  making  questions  justiciable 
which  were  not  regarded  as  justiciable  before.  It  is  not, 
humanly  speaking,  probable  that  all  possible  causes  of 
international  controversy  will  be  brought  within  the  range 
of  judicial  settlement.  But  if  the  Court  by  its  actual 
practice  justifies  itself  before  the  common  judgment  of 
civilised  mankind,  it  is  certain  that  the  cases  submitted 
to  its  decision  will  gradually  increase  in  number  and 
variety.  Too  much  must  not  be  expected  at  the  start. 
More  than  half  a  century  elapsed  before  the  American 
Supreme  Court  rendered  its  first  final  decree  in  a  suit 
between  two  States,  and  the  problems  which  it  has  had  to 
solve  are  simple  compared  with  those  which  are  likely 
to  confront  a  tribunal  holding  jurisdiction  over  really 
independent  nations.  It  can  hardly  be  hoped  that  the 
Court  will  render  perfect  decisions  in  all  cases,  or  that 
every  decree  will  meet  with  a  ready  acceptance  by  the 
unsuccessful  party.  But  every  decision  that  is  acknowl- 
edged to  be  just  and  every  instance  of  ready  compliance 
will  help  to  make  smooth  the  way  toward  the  establish- 
ment of  the  ideal,  which  is  nothing  less  than  the  rule  of 
justice  in  international  affairs.  The  immediate  problem 
for  the  present  day  is  to  make  a  start  in  the  right 
direction. 

Another  lesson  which  American  history  teaches  us  is 
this.  Any  problems  which  are  certain  to  arise  must  be 
fully  considered  in  advance,  and  rules  for  their  solution 
must  be  set  down  in  black  and  white.  For  the  sake  of 
immediate  agreement  the  framers  of  the  American  Con- 
stitution deliberately  avoided  some  awkward  questions. 
They  did  not  say  whether  Congress  could  regulate 
slavery;  in  fact  the  very  words  "  slavery  "  and  "  slave  " 
are  absent  from  the  document.  Again  they  were  silent 
upon  the  vital  question  whether  a  State  could  or  could 
not  withdraw  from  the  Union.    To  leave  those  questions 


GENERAL  CONCLUSIONS  117 

unsettled  may  have  served  their  immediate  purpose,  but 
it  was  inviting  war  in  the  future.  The  great  question  of 
how  to  enforce  the  will  of  the  whole  upon  the  States  is 
not  dealt  with  explicitly,  though  much  may  be  inferred. 
Nothing  is  said  about  the  mode  of  enforcing  compliance 
with  judicial  decisions,  unless  we  can  find  it  in  the  words 
whereby  the  President  is  made  commander-in-chief  of 
the  Federal  armed  forces,  and  is  charged  (Art.  II,  Sec.  3) 
to  "  take  care  that  the  laws  be  faithfully  executed."  It 
was  under  the  authority  of  these  words  that  Lincoln  took 
his  measures  against  the  Southern  States  in  1861. 

The  difficulty  of  providing  in  advance  a  permanent 
solution  of  all  such  questions  is  indeed  great.  But 
greater  is  the  danger  which  lies  in  the  policy  of  leaving 
them  undetermined  in  the  vague  hope  that  a  solution  may 
after  all  never  be  required.  Nations  may  fairly  be  ex- 
pected to  abide  by  obligations  which  they  have  under- 
taken with  their  eyes  open,  but  they  cannot  be  expected 
to  acquiesce  in  decisions  which,  in  the  absence  of  specific 
rules,  must  depend  on  the  personal  opinions  of  a  small 
body  of  judges.  The  decision  in  the  Dred  Scott  case  was 
of  this  character.  The  Constitution  said  nothing  about 
the  authority  of  Congress  to  deal  with  slavery,  and  the 
judges  were  therefore  forced  to  decide  according  to  their 
own  private  ideas  of  right  and  wrong.  A  legal  judg- 
ment upon  a  great  political  issue  delivered  in  such  cir- 
cumstances naturally  carried  no  moral  weight  with  those 
who  did  not  already  accept  the  view  taken  by  the  ma- 
jority of  the  Court. 

The  greatest  of  all  difficulties  is  of  course  the  problem 
of  enforcing  upon  the  members  of  the  League  the  com- 
mon will,  if  there  is  one,  of  the  whole  body,  whether  that 
will  be  expressed  through  the  judicial  or  through  other 
organs.  It  must  be  admitted  at  the  outset  that  in  certain 
vital  matters  no  State  will  consent  in  the  last  resort  to 


Ii8  AMERICAN  SUPREME  COURT 

accept  any  other  will  than  its  own.  But  even  in  the  lesser 
matters  which  are  entrusted  to  the  judgment  of  the 
League  it  will  be  necessary  to  make  express  provision  for 
the  securing  of  obedience  to  the  common  will.  If  there 
is  no  explicit  rule  each  State  will  be  lawfully  and 
honourably  entitled,  whenever  the  question  arises,  to  act 
upon  the  interpretation  that  best  suits  its  own  interests. 
Unless  the  constitution  of  the  League  deals  adequately 
with  this  essential  matter  the  cause  of  judicial  settlement 
will  not  in  practice  be  advanced  much  further  than  it  has 
already  been  carried  by  the  existing  system  of  arbitration 
treaties.^ 

Furthermore  no  Court  of  the  Nations  can  possibly  sat- 
isfy the  world  unless  it  administers  a  known  and  written 
code  of  international  law.  On  many  important  questions 
of  international  law  there  is  no  general  agreement  and  the 
actual  practice  of  nations  has  in  fact  differed  widely. 
The  American  Supreme  Court  could  never  have  held  the 
Union  together  without  the  express  provisions  of  the 
written  Constitution.  The  States  could  never  have  been 
induced  to  accept  decisions  fixing  their  relations  to  the 
United  States  or  to  each  other  if  those  decisions  had 
rested  on  nothing  better  than  the  personal  opinions  of  the 
judges.  Hostility  to  the  Court  has  been  caused  chiefly 
by  its  decisions  upon  the  vaguer  clauses  of  the  Consti- 
tution. Its  interpretation  of  a  few  ambiguous  phrases 
has  thrown  open  to  Congress  a  vast  field  of  activity  which 
the  public  opinion  of  1787  would  almost  certainly  have 
reserved  to  the  States.  It  cannot  be  expected  that  the 
nations  of  the  modern  world  will  be  willing  to  leave  im- 
portant rights  at  the  mercy  of  judges  who  are  fettered 
by  nothing  stricter  than  their  own  predilections.     Those 

*  This  chapter  was  written  before  the  publication  of  the  League 
of  Nations  Covenant  in  the  peace  treaty  with  Germany.  I  have 
thought  it  best  to  leave  the  text  as  it  was  written  without  attempt- 
ing to  inquire  how  far  the  Covenant  conforms  to  the  principles 
which  I  believe  to  be  sound. 


GENERAL  CONCLUSIONS  119 

of  us  who  have  always  lived  in  the  atmosphere  of  the 
Anglo-American  common  law  must  also  remember  that  in 
other  jurisdictions  the  decisions  of  tribunals  arc  not  re- 
garded as  being  in  themselves  decisive  of  the  law.  Con- 
tinental lawyers  do  not  consider  that  a  disputed  question 
is  necessarily  closed  by  a  single  decision  of  a  superior 
Court.  They  are  accustomed  to  clearly  codified  systems 
of  law,  and  must  not  be  expected  to  accept  the  English 
view  that  a  court  can  be  safely  left  to  build  up  a  system 
of  law  by  its  own  decisions  in  particular  cases. 

If  then  we  have  correctly  estimated  the  work  of  tiie 
Supreme  Court  of  the  United  States,  the  practical  lessons 
for  our  own  time  to  be  drawn  from  its  history  may  be 
summarised  as  follows. 

In  the  first  place  it  is  hopeless  to  expect  that  every 
possible  cause  of  controversy  between  independent  States 
admits  of  final  settlement  by  judicial  decision.  Certain 
cases  in  which  the  existence,  the  honour,  or  the  most 
vital  interests  of  the  nations  are  involved  can  only  be 
settled  by  agreement  or,  in  the  last  resort,  by  war. 

Secondly,  it  is  reasonable  to  hope  that  the  establish- 
ment of  a  permanent  tribunal  constructed  on  sound  prin- 
ciples will  lead  in  the  course  of  time  to  the  growth  of 
an  international  practice  of  submitting  controversies  to 
judicial  decision;  and  if  the  conduct  of  the  Court  is  such 
as  to  justify  the  expectations  of  its  founders  we  may 
anticipate  that  the  cases  brought  before  its  bar  will  grad- 
ually increase  in  number  and  variety. 

Thirdly,  it  is  essential  that  certain  vital  questions  which 
must  inevitably  arise,  such  as  the  problem  of  ensuring 
compliance  with  decrees,  must  be  clearly  and  unambigu- 
ously provided  for  in  advance. 

Fourthly,  the  judgments  of  the  court  will  not  com- 
mand general  assent  unless  it  administers  a  definite  and 
written  system  of  international  law  drawn  up  by  the 


I20  AMERICAN  SUPREME  COURT 

agreement  of  all  the  States  which  become  members  of  the 
League. 

If  the  Court  is  established  and  developed  upon  sound 
principles,  there  is  almost  no  limit  to  the  services  which 
it  may  ultimately  render  to  the  cause  of  international  jus- 
tice and  peace.  But  if  the  desire  to  obtain  a  speedy 
agreement  or  the  reluctance  to  tackle  difficult  problems 
tempts  statesmen  to  lay  the  foundations  badly,  the  experi- 
ment is  bound  to  end  in  failure.  The  worst  peril  of 
failure  is  that  it  may  lead  men  to  the  despairing  con- 
clusion that  the  peaceful  and  righteous  settlement  of  in- 
ternational disputes  is  nothing  better  than  an  idle  dream. 


THE  END 


INDE^C 


Account 

Decreed  between  States,  68 

Items  of,  considered  by  the  Court,  70-1 
Accretion 

Defined,  41 

Instances  of,  42,  53 
Acquiescence  (See  Possession) 
Agreements  Between  States 

Effect  of,  considered,  36,  38-9,  43,  55,  67-8,  75-6 

Suggested  by  the  Court,  53,  68 
Articles  of  Confederation,  i,  3-5 

Judicial  provisions  of,  4-5 
Avulsion 

Defined,  42 

Instances  of,  42,  47,  55-6 
Bank  of  the  United  States 

Controversy  concerning  the  charter  of,  90 
Boundaries 

Nature  of,  in  America  and  in  Europe,  34-5 

Principles  of  decision  applicable  to,  56-9 

Procedure  in  determinmg,  37 

Doctrine  of  long  possession  applied  to,  35,  36,  41,  43,  50, 

54,  55 

Doctrine  of  self-determination  not  applied  to,  35,  39 

In  navigable  channels,  42-3,  51,  76-7 

Mathematical,  34,  36-7,  43,  44,  54 

(See  also  Accretion,  Avulsion,  Rivers,  and  Thalweg) 
Civil  War,   1861-5 

Relation  of  the  Supreme  Court  to,  12,  91-3 

Claim  by  New  York  for  money  spent  in,  65 
Claims,  Court  of 

Establishment  of,  31-2,  63 

Suits  by  States  in,  ^,  64-7 
Code 

Necessity  of,  for  an  international  tribunal,  88,  118-20 
Constitution  of  the  United  States,  Ch.  I 

Judicial  provisions  of,  7-9 

Tenth  Amendment  to,  i 

Eleventh  Amendment  to,  9,  21,  95 

Other  Amendments  to,  13,  93 
Costs 

Practice  of  the  Supreme  Court  regarding,  37,  52,  81 
Debts  of  the  States,  Ch.  IV 

Suits  by  individuals  to  recover,  9,  60 

Question  of  interest  upon,  61-2,  65,  70-1 

X2I 


122  INDEX 

Embargo  upon  Trade 

Legality  of,  considered,  22-4,  77-9 
English  Law 

Position  of,  in  American  Jurisprudence,  15,  57-8,  83 
Execution,  Ch.  VI 

Importance  of  the  problem  of,  1 17-18 
Fishery 

Rights  of,  in  territorial  waters,  47-52 
Foreclosure 

Decreed  against  a  State,  22,  98-9 
Foreign  States 

Indian  tribes  not  included  among,  15,  "j^i 

Suit  by  Cuba  against  South  Carolina  not  prosecuted,  75 
Fugitives 

Obligation  of  a   State  to  surrender,   18,  95-7 
Gifts 

Validity  of,  unaffected  by  motives  and  status  of  donor,  22 
Hamilton,  Alexander 

Views  of,  upon  the  enforcement  of  decrees  against  States, 

101-2 

Indian  Tribes 

Legal  position  of,  15,  73-5,  89 
International  Law 

Applied  by  the  Supreme  Court,  3,  41-3,  51,  53,  83-4 
Irrigation 

Injury  by,  24-5,  81-7 
Islands 

Disputes  as  to  ownership  of,  39-42,  47-52,  53 
Jackson,  President  Andrew 

Attitude  of,  towards  the  Supreme  Court,  89-91 
Jurisdiction  of  the  Supreme  Court,  Ch.  II 

Defined  by  the  Constitution  and  Judiciary  Act  of  1789,  6-9 

Curtailed  by  the  Eleventh  Amendment,  9,  21,  95 
Maps 

Effect  of  errors  in,  considered,  45-7 
Marshall,  Chief  Justice 

Influence  of,  upon  the  Constitution,  10,  89-90 
Missouri  Compromise,  1820,  91 
Nuisance 

Action  for,  against  a  State,  25-6,  79-81 
Political  Questions 

May  become  judicial,  17 
Possession   (See  Boundaries) 
Procedure,  Rules  of 

Application  of,  where  States  are  parties,  3,  36-7,  69,  107-8 
Resistance 

Instances  of,  to  decrees  of  the  Supreme  Court.    Ch.  VI 
Quarantine  Laws 

Action   against   a   State   based   upon   unfair   administration 
of,  22-4,  77-9 


INDEX  123 

Riparian  States 

Rights  of,  in  common  stream,  24-6,  75-7,  79-87 
(See  also  Boundaries) 

Rivers 

Banks  of,  as  boundaries,  37-8,  54-S 
Effect  of  changes  in,  upon  boundaries,  39-4^ 
Jurisdiction  of  Congress  over  navigable,  75-7,  82-3 
(See    also    Accretion,    Avulsion,    Boundaries,    Nuisance, 
Rip.\rian  States,  and  Thalweg) 

Sea,  Arms  of  the 

Question  of  boundaries  in,  47-52,  52-3 

Set-off 

Question  of,  in  actions  upon  State  debts,  64 

Sewage  (See  Nuisance) 

Slavery 

Controversy  concerning,  91-3 

Sovereignty 

Theory   of,   in   the   American   Constitution,   1-3,    no 

States 

Equality  of,  84 

Duties  of  the  governors  of,  96-7 

Supreme  Court 

Origin  and  functions  of,  Ch.  I 

Attitude  of  public  opinion  towards,  89-90,  109 

Position  of,  in  political  controversies,  92-3 

Influence  of,  considered,   11-13,  Ch.  VII 
Taney,  Chief  Justice 

Opinion  of,  in   Dred   Scott  case,  91-3 

Tax 

Question  of  mandamus  to  a  State  to  levy,  102-4 
Limits  of  State  exemption   from  Federal,  65-7 

Texas 

Admission  of,  to  the  Union,  2,  44-5 

Thalweg 

Rule  of,  explained  and  applied,  51,  52-3 

Trade 

Liabilities  of  States  engaging  in,  65-7 

Treaties 

Boundaries  depending  upon,  39,  42-3,  44-5,  48 

Violation  of,  by  States,  73-5,  89 
United  States 

Suits  by,  29-30,  44-7,  61-3 

Suits  against,  30-3,  63-7 

Intervention  of,  in  inter-State  suits,  18,  82-3 

Relation  of,  to  the  States,  i,  18,  66,  in 

War 

Power  of  tribunals  to  avert,  discussed.  Ch.  VII 

West  Virginia 

Formation  of,  19-21,  27,  38-9,  67-8 

Reluctance  of,  to  comply  with  decree  of  the  Supreme  Court, 
28,  99-ioS 


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